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MECHANICS'  LIENS 


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BUILDING   CONTRACTS 


WITH  AN 

APPENDIX 

CONTAINING   THE   CALIFORNIA   MECHANICS'    LIEN    LAW   AS 
AMENDED  IN   1911 


FULLY  ANNOTATED 

BY   CROSS-REFERENCES 


BY 

S.   BLOOM 

OF  THE   SAN   FRANCISCO    BAR 


SAN     FRANCISCO 
BENDER-MOSS   COMPANY 

LAW  PUBLISHERS  AND  BOOKSELLERS 
1912 


COPYRIGHT,  1912 
BY  S.  BLOOM 

T 


WILLIAMS  PRINTING  COMPANY 


lNtlBPFM>FNT  PRESS  ROOM 


PART  I. 

SUBSTANTIVE  LAW,  OR  PRIMARY  RIGHTS. 

u 


CHAPTER  I. 

HISTORY,  SPIRIT,  NATURE,  AND  CONSTRUCTION  OF  THE  LAW. 

§  1.  Introductory.  Owing  to  the  large  number  of  cases 
decided  during  the  past  two  years  in  the  various  courts,  the 
change  of  attitude  assumed  by  some  of  them  towards  the 
statute,  the  complete  revision  of  the  statute  in  at  least  one 
of  the  states  considered  in  the  Treatise,  and  for  other  rea- 
sons, it  has  been  deemed  expedient  to  issue  this  Supplement. 

§  2.  General  divisions  of  subject.  California  Statute  dis- 
tinguished. 

Additional  matter  to  foot-note  4.1 

§  3.     Questions  raised  by  the  decisions. 
Additional  matter  to  subdivision  3.2 

§  4.    Historical. 

Additional  matter  to  foot-note  5.3 


1  California.      While   the    general    division    of    subjects    given    in    the 
text  of  the  Treatise  is  applicable  to  the  new  Act  of  May,  1911   (Stats. 
&  Amdts.,  1911,  pp.   1313  et  seq.),  the  new  statute  is  much  clearer  in 
its  division  of  the  subjects  or  work  for  which  a  lien  is  given. 

2  California.      The   new   Act   of   May   1,    1911    (Stats.   &   Amdts.,    1911, 
pp.  1313  et  seq.)  attempts  a  statutory  statement  regarding  the  nature 
of  the   lien.     See   Supplement,   §  10,   post. 

3  Unknown  to   common  law: 

Oklahoma.  Christy  v.  Union  O.  &  G.  Co.  (Okl.  March  21,  1911),  114 
Pac.  Rep.  740;  Shirley  v.  Union  O.  &  G.  Co.  (Okl.,  March  21,  1911),  114 
Pac.  Rep.  742;  Keel  v.  Ingersoll  (Okl.,  September  13,  1910),  111  Pac. 
Rep.  214. 

Or  equity  jurisprudence:    California.     Los  Angeles  P.  B.  Co.  v.  Hig- 
gins,  8  Cal.  App.   514,  520,  97  Pac.  Rep.   414,   420. 
Bloom's  Sup. — 1 


§§4,  4a  MECHANICS'  LIENS—  SUPPLEMENT.  £ 

Additional  matter  to  foot-note  7.4        • 

§  4a.  Constitutional  Liens.  While  in  nearly  all  of  the 
states  mechanics'  liens  are  created  by  act  of  the  legislature, 
in  a  few  jurisdictions  some  of  these  liens  are  more  properly 
the  creations  of  the  state  constitutions,  as  in  Texas  and 
California  ;  and  it  is  only  in  a  broad  sense  that  apart  from 
the  statute  providing  for  the  enforcement  of  the  same,  such 
constitutional  mandatory  liens  may  be  denominated  statu- 
tory liens.  Furthermore,  in  California,  for  instance,  as 
already  shown,5  the  statute  provides  for  liens  more  extens- 
ive in  character  than  the  constitution  grants.6 

The  more  recent  decisions  of  the  California  Supreme 
Court,  it  is  said,  recognize  the  force  of  the  constitutional 
declaration  of  the  right  to  such  liens.7 


See    Pratt    v.    Tudor,    14    Texas    39;    Shields    v.    Morrow,   -51 
Texas   393. 

4  I    r<-:il  lire    of   local    li-i;  i»  l:i  i  i..n  : 

California.  Davis  v.  Treacy,  8  Cat.  App.  395,  97  Pac.  Rep.  78  (hear- 
ing by  Supreme  Court  denied);  Holt  Mfg.  Co.  v.  Collins,  154  Cal.  264, 
271.  97  Pac.  Rep.  516:  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App. 
621.  110  Pac.  Rep.  474,  475. 

\rkiinxn*.     See  Murray  v.  Rapley,  30  Ark.  568. 

KHIIMIIM.  Potter  v.  Conley  (Kan.,  January  7,  1911),  112  Pac.  Rep. 
608.  609. 

Mlnnmota.  See  Toledo  N.  Works  v.  Bernheimer,  8  Minn.  118 
(Gil.  92). 

Nevada.  Tonopah  L.  Co.  v.  Nevada  A.  Co.,  30  Nev.  445,  97  Pac.  Rep. 
636.  639;  Porteous  D.  Co.  v.  Fee,  29  Nev.  380,  91  Pac.  Rep.  135. 

New  Mexico.  Burton-Lingo  Co.  v.  Patton  (N.  M..  February  28, 
1910),  107  Pac.  Rep.  679,  680. 

Oklahoma.  Peaceable  Creek  C.  Co.  v.  Jackson,  26  Okl.  1,  108  Pac. 
Rep.  409,  411;  Albert!  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547;  Keel 
v.  Ingersoll  (Okl.,  September  13,  1910),  111  Pac.  Rep.  214;  Christy  v. 
Union  O.  &  Q.  Co.  (Okl.,  March  21,  1911),  114  Pac.  Rep.  740;  Shirley 
v.  Union  O.  &  G.  Co.  (Okl.,  March  21,  1911),  114  Pac.  Rep.  742. 

Orfgom.  Durkheimer  v.  Copperopolis  C.  Co.  (Orcg.,  November  15, 
1909),  104  Pac.  Rep.  895.  898. 

Utah.  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah.  June  12,  1909). 
103  Pac.  Rep.  254.  257. 

\Va»hlnicton.  Crane  Co.  v.  Aue  H.  Co.  (Wash.,  December  20,  1910), 
112  Pac.  Rep.  430,  432;  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  101 
Pac.  Rep.  869,  102  Pac.  Rep.  766. 

•••  Treatise,  §  28.  ante. 

e  See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  509,  97  Pac.  Rep. 
216  (hearing  by  Supreme  Court  denied);  s.  c.,  8  Cal.  App.  512,  97  Pac. 
Rep.  218.  See  also  Spinney  v.  Griffith,  98  Cal.  149,  32  Pac.  Rep.  974. 

7  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  509,  97  Pac.  Rep. 
216  (hearing  by  Supreme  Court  denied);  s.  c.,  8  Cal.  App.  512,  97  Pac. 


3  SCOPE  AND  CONSTRUCTION  OF  THE  LAW.  « S  5.7 

§  5.    Evolution  of  California  mechanics'  lien  law. 

Additional  matter  to  foot-note  II.8 

§  6.    Spirit  of  the  law. 

Additional  matter  to  Oregon  foot-note  14.9 

§  7.  Theory  of  the  mechanics '  lien  law.  It  has  been  said 
in  a  recent  case  that  the  underlying  principle  of  the  entire 
theory  of  the  mechanics'  lien  law  is  estoppel.10 

Additional  matter  to  foot-note  15.11 

Additional  matter  to  foot-note  16. 12 


Rep.  218;  citing  Hampton  v.  Christensen,  148  Gal.  729,  737,  84  Pac.  Rep. 
200;  Hughes  Bros.  v.  Hoover,  3  Cal.  App.  145,  150,  84  Pac.  Rep.   681. 

8  Utah.     Evolution  of  statute.     The  mechanics'  lien  law  of  Utah,  in 
substantially  its  present  form,  was  adopted  in  1894    (laws  1894,  p.   44, 
c.  41).     The  lien  act  consisted  of  16  sections  and  contained  the  whole 
law  upon  the  subject  of  mechanics'  liens.     In   1898,  when  the  laws  of 
the  state  were  revised,  and,  to  some  extent,  recast,  this  act  was  made 
Chapter  I,  tit.   39,   of  the  Revised  Statutes  of  1898.      The   phraseology 
of    the    law    was    changed    somewhat,    and    the    different    sections    as 
originally  numbered  were,  in  many  respects,  changed,  so  that  Chapter 
I   aforesaid   is   composed   of    28,   instead   of    16    sections.      Chapter   I   Is 
composed  of  §§  1372  to  1399  inclusive  in  the  Revised  Statutes  of  1898, 
and  these  sections  retain  the  same  numbering  in   the  Compiled  Laws 
of   1907.      The   original   act  provided  for  liens   for   labor   and  material 
upon    almost    every    kind    of    improvement;    but,    in    doing    so,    neither 
the    matters    for    which    liens    were    created    nor    the    property    upon 
which   liens   were   given   were  mentioned   in   the   same   section.      From 
the   wording   of   the   different   sections   it   is,    however,   made   apparent 
that  sometimes  some  of  the  provisions  of  the  particular  section  were 
intended  to  apply  to  the  matters  set  forth  in  that  section  only,  while 
it  is  equally  apparent  that  other  provisions  of  the  same  section  were 
intended  to  apply  to  the  act  as  a  whole:   Park  City  M.  Co.  v.  Corn- 
stock  S.  M.  Co.   (Utah,  June  12,  1909),  103  Pac.  Rep.   254,   258. 

9  Oregon.      Statutory    privilege:     Coffey    v.    Smith,    52    Oreg.    538,    97 
Pac.  Rep.  1079,  s.  c.,  52  Oreg.  545,  97  Pac.  Rep.  1081,  s.  c.  52  Oreg.  546, 
97  Pac.  Rep.  1082. 

10  California.     John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  333,  111 
Pac.    Rep.    9    (on    hearing   in    the    Supreme    Court);    s.    c.,    8    Cal.    App. 
Dec.    350. 

11  California.     See  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  486, 
94  Pac.   Rep.    73.     But  see,  criticising  this   case  generally,   Robison   v 
Mitchell    (Cal.   Sup.,   March   20,   1911),   114   Pac.   Rep.   984,   988. 

Nevada.  Porteous  Dec.  Co.  v.  Fee,  29  Nev.  380,  91  Pac.  Rep.  135; 
Tonopah  L.  Co.  v.  Nevada  A.  Co.,  30  Nev.  445,  97  Pac.  Rep.  636,  639. 

12  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.   &  D.  Co., 
7  Cal.  App.  460,  461,  94  Pac.  Rep.  775. 

Idaho.  Naylor  &  Nowlin  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho 
722,  95  Pac.  Rep.  827,  829;  s.  c.  96  Pac.  Rep.  573;  Steltz  v.  Armory  Co., 
15  Idaho  551,  99  Pac.  Rep.  98,  101  (as  to  Sess.  Laws  1899,  p.  148). 


§§7,8 


MECHANICS'   LIENS— SUPPLEMENT. 


Additional  matter  to  foot-note  17.13 
Additional  matter  to  foot-note  18. 14 
Additional  matter  4;o  foot-note  19. 15 

§  8.  A  favored  lien.  While  the  mechanics'  lien  is  favored 
in  the  law,  yet  it  is  for  the  legislature  to  determine  the 
method  by  which  the  lien  can  be  enforced;  and  the  courts 
are  not  at  liberty  to  disregard  any  statutory  requirement.16 

Additional  matter  to  foot-note  23. 17 


Kao*an.  See  Robert  Oarrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac. 
Rep.  179,  180. 

.      Montana.     See  Smallhouse  v.  Kentucky  M.  G.  &  S.  M.  Co.,   2  Mont. 
443,   445. 

Oklahoma.  The  mechanics'  lien  law  was  enacted  for  the  protec- 
tion of  those  furnishing'  material  for  and  performing  labor  on  the 
building  and  not  for  the  benefit  of  him  who  has  the  building  con- 
structed: Crutcher  v.  Block,  19  Okl.  246,  91  Pac.  Rep.  897. 

Oregon.  See  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  January  26, 
1910),  106  Pac.  Rep.  452,  454;  Durkheimer  v.  Copperopolis  C.  Co. 
(Oreg..  November  15,  1909),  104  Pac.  Rep.  895,  897. 

is  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  464,  94  Pac.  Rep.  775. 

Montana.  See  Smallhouse  v.  Kentucky  M.  G.  &  S.  M.  Co.,  2  Mont. 
443,  445. 

Oregon.  See  Durkheimer  v.  Copperopolis  C.  Co.  .(Oreg.,  November 
15,  1909),  104  Pac.  Rep.  895,  897. 

14  New  Mexico.  Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac. 
Rep.  603,  605. 

is  California.  Principle  underlying;  Dore  v.  Sellers.  The  principle 
upon  which  the  decision  in  the  case  of  Dore  v.  Sellers,  27  Cal.  588, 
was  decided,  under  the  Act  of  1862,  has  no  application  to  the  law  as 
It  existed  in  California  before  the  Act  of  May  1,  1911  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.),  and  was  based  upon  a  different  theory,  namely, 
that  the  lien  was  not  granted  because  the  owner's  property  was 
benefited,  but  because  claimant  furnished  labor  or  materials  for  the 
contractor,  to  whom  the  law  granted  a  lien;  and  that  there  was  no 
lien  in  the  subclaimants  independently  of  the  contractor,  and  that 
they  obtained  their  liens  not  as  principals,  though  entitled  to  be  first 
paid  out  of  the  moneys  becoming  due  under  the  contract  (upon  the 
principle  of  subrogation):  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B. 
&  D.  Co.,  7  Cal.  App.  460,  463,  94  Pac.  Rep.  776. 

Idaho.     See  Steltz  v.  Armory  Co.,  15  Idaho  551,  99  Pac.  Rep.  98,  100. 

Kannai.  See  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac. 
Rep.  179.  180. 

New  Mexico.  Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep. 
603,  605. 

ie  California.  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  486. 
94  Pac.  Rep.  773.  See  criticising  this  case  generally,  Robison  v. 
Mitchell  (Cal.  Sup.,  March  20,  1911).  114  Pac.  Rep.  984,  988. 

IT  California.  No  lien  for  peeling  bark  under  {3052  Civ.  Code: 
Quish  v.  Hill,  154  Cal.  748,  99  Pac.  Rep.  204. 


SCOPE  AND  CONSTRUCTION  OF  THE  LAW. 

§  9.    General  nature  of  lien. 
Additional  matter  to  foot-note  24. 18 


i§9-13 


§  10.    General  classification  of  liens  of  this  character. 
Additional  matter  to  foot-note  25. 19 

§  11.    Another  classification. 

Additional  matter  to  foot-note  26.20 

§  12.    The  classification  adopted  herein.21 

§  13.  The  same.  Contractual  relation  between  owner  and 
original  contractor.  The  new  statute  of  California  22  expressly 
states  that  a  direct  lien  is  given  to  subclaimants ;  but  there 
are  expressions  in  the  same  section  which  render  it  more 
than  doubtful  whether  the  new  law  does  not  partake  of 
the  dual  nature  of  the  statute  which  it  superseded.  In  other 


Washington.  Difficulty  of  compliance  with  statute.  The  argument 
that  It  is  difficult  to  comply  with  the  statute  should  be  addressed  to 
the  legislature;  the  courts  are  not  responsible  for  the  wisdom  or 
expediency  of  the  lien  law:  Finlay  v.  Tagholm  (Wash.,  March  8,  1911), 
113  Pac.  Rep.  1083,  1084,  s.  c.,  Ill  Pac.  Rep.  782. 

is  Oklahoma.  Materialman's  Hen  under  the  statute  is  neither  a  Jus 
in  re  nor  a  jus  ad  rein,  but  simply  a  right  to  charge  property  affected 
by  it  with  the  payment  of  the  particular  debt  in  preference  and 
priority  to  other  debts,  on  compliance  with  the  requisites  of  the 
statute;  and  it  is  inchoate  until  perfected  by  the  rendition  of  a  judg- 
ment in  rem  in  the  mode  pointed  out  by  the  statute:  Albert!  v.  Moore, 
20  Okl.  78,  93  Pac.  Rep.  543,  547;  Porter  &  Co.  v.  Miles,  67  Ala.  130. 

19  Idaho.     Direct   lien.     In   this   state,    inf  erentially   a   direct   lien   is 
given.     Compare  Shaw  v.  Johnston,  17  Idaho  676,  107  Pac.  Repl  399. 

Kansas.  Direct  lien.  In  a  majority  of  the  states,  as  in  Massachu- 
setts, the  subcontractor  is  given  a  direct  lien,  as  in  Kansas;  and  the 
Kentucky  statute,  as  well  as  that  of  Kansas,  provides  that  he  shall 
have  a  direct  lien  and  not  by  way  of  subrogation:  Fossett  v.  Rock 
Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833,  838,  839.  See 
Wichita  S.  &  D.  Co.  V.  Weil,  80  JCan.  606,  103  Pac.  Rep.  1003,  1004. 

Kentucky.     See  Kansas  note,  ante. 

New  Mexico.  A  direct  Hen  is  given  to  the  subcontractor  under  Comp. 
L.  1897,  §§2216  et  seq.:  Baldridge  v.  Morgan  (N.  M.,  January  6,  1910), 
106  Pac.  Rep.  342,  343;  Nash  v.  Morgan  (N.  M.,  January  6,  1910),  106 
Pac.  Rep.  344;  Metz  v.  Romero  (N.  M.,  January  6,  1910),  106  Pac.  Rep. 
344.  See  Hobbs  v.  Spiegelberg,  3  N.  M.  (Gild.),  357,  5  Pac.  Rep.  529. 

20  See  Supplement,  §  10,  additional  matter  to  foot-note  25  of  Treatise, 
ante. 

21  As  to  Direct  and  Indirect  Lien:  See  this  Supplement,  §  10 'ante. 

22  Act  of  May  1,  1911   (Stats,  and  Amdts.  1911,  p.  1313). 


§§  13-15  MECHANICS'  LIENS— SUPPLEMENT.  Q 

words,  it  provides  under  certain  conditions  for  a  direct  lien, 
and  under  others,  for  an  indirect  lien.  The  former  statute, 
under  certain  circumstances,  namely,  the  failure  to  file  the 
statutory  original  contract  as  required  by  the  law,  gave  a 
direct  lien ;  otherwise,  an  indirect  lien.  On  the  other  hand, 
the  new  statute  in  so  many  words  purports  to  give  a  direct 
lien;  but  apparently,  upon  the  filing  by  the  owner  of  the 
original  contract  and  the  statutory  bond  in  the  manner  pro- 
vided, only  an  indirect  lien  is  giveji.23 

The  status  of  the  lien  upon  the  fund,  under  the  garnish- 
ment proceeding  by  notice  to  the  owner,  still  survives  in 
the  new  act;  and  it  remains  to  be  seen  what  relation  this 
lien  will  be  found  to  bear  to  the  others  upon  the  property.24 

§  14.  Same.  Valid  and  void  contract.  Effect.  In  the  last 
preceding  section  some  suggestions  have  been  made  as  to  the 
nature  of  the  lien  provided  for  by  the  new  statute  of  Cali- 
fornia,25 and  the  effect  of  the  void  contract  under  the  prior 
law,  so  far  as  relates  to  the  extent  of  the  lien  with  reference 
to  the  contractual  liability  of  the  owner,  has  been  compared 
with  the  new  enactment. 

Additional  matter  to  foot-note  31.26 

§  15.  Same.  The  object  or  thing  to  which  the  lien 
attaches.  There  can  be  no  mechanics'  lien  on  vacant  lantf 
for  the  construction  of  a  building  which  is  destroyed  by  fire, 
earthquake,  flood  or  other  natural  cause,  without  fault  of  the 
owner.27 

Additional  matter  to  foot-note  32.28 

23  See  new  statute  annotated  in  Appendix,  post. 

24  See  Notice  to  owner,  Treatise,   §§  547   et  seq.,  ante,  and   notes   to 
same  sections  this  Supplement,  post. 

25  Stats,  and  Am. Us.   1911,  pp.   1313  et  seq. 

2«  See  Direct  Lien,  notes  to  5  10,  foot-note  25  ante,  this  Supplement. 

27  California.     See  Watson  v.  Alta   I.  Co.,   12  Cal.   App.   560,   564,    108 
Pac.   Rep.   48    (hearing   in   Supreme  Court  denied);   Watson   v.  Alta   I. 
Co.,   12   Cal.   App.   566,    108    Pac.    Rep.    60    (hearing   in    Supreme   Court 
denied);  Seebach  v.  Kuhn,  9  Cal.  App.  485,  489,  99  Pac.  Rep.  723  (hear- 
ing  in   Supreme   Court   denied).      See,   also,    Boyd   v.    Bargagliotti,    12 
Cal.  App.  228,  237,  107  Pac.  Rep.  150. 

28  Arkansas.     See  Keel  v.  Ingersoll    (Okl.,  September  13,   1910),   111 
Pac.  Rep.  214. 


7  SCOPE  AND  CONSTRUCTION  OF   THE  LAW.  §  ^5 

§  16.     Same.    Lien  on  structure  separate  from  land.    The 

rule  is  not  uniform  in  all  of  the  states  as  to  whether  a 
mechanic's  lien  may  attach  to  the  building  separate  and 
apart  from  the  land  upon  which  it  is  located.  In  some  states 
the  rule  prevails  that,  where  for  any  reason  the  lien  can  not 
attach  to  the  land,  it  may  attach  to  the  building  separate 
and  apart  therefrom. 

In  other  states  the  lien  attaches  only  to  the  building,  but 
it  appears  that  in  a  majority  of  the  states  a  lien  upon  the 
building  separate  and  apart  from  the  land  is  not  recognized. 
The  rule  in  each  state  is  determined  by  specific  provisions  of 
its  statute,  or  the  construction  of  such  statute  by  the  courts 
of  that  state.  In-  those  states  where  it  is  held  that  the  lien 
may  attach  to  the  building  separate  from  the  land,  although 
the  statute  does  not  specifically  so  direct,  the  rule  has  re- 
sulted from  construction  of  provisions  in  statutes  of  such 
state  authorizing  a  sale  of  the  building  or  improvement 
separate  and  apart  from  the  land  and  a  removal  of  the  same 
from  the  land  by  the  purchaser.29 

Colorado.  Building  as  fixture.  See  Hughes  v.  Kershow,  42  Colo.  210, 
93  Pac.  Rep.  1116. 

Indian  Territory.  See  Keel  v.  Ingersoll  (Okl.,  September  13,  1910), 
111  Pac.  Rep.  214. 

Nebraska.  Compare  Western  C.  M.  Co.  v.  Leavenworth,  52  Neb.  418, 
72  N.  W.  Rep.  592. 

New  Mexico.  See  Burton-Lingo  Co.  v.  Patton  (N.  M.,  February  28, 
1910),  107  Pac.  Rep.  679,  682,  683. 

Oklahoma.  See  Keel  v.  Ingersoll  (Okl.,  September  13,  1910),  111  Pac. 
Rep.  214. 

Utah.  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah,  June  19,  1909), 
103  Pac.  Rep.  254,  259. 

29  Oklahoma.  Keel  v.  Ingersoll  (Okl.,  September  13,  1910),  111  Pac. 
Rep.  214. 

The  Oklahoma  statute  contains  no  provision  creating  in  terms  a  lien 
upon  the  improvements  separate  and  apart  from  the  realty;  nor  does 
it  contain  any  provision  authorizing  a  foreclosure  of  the  lien  upon 
such  improvements  separate  and  apart  from  the  land  when  for  any 
reason  the  lien  can  not  attach  to  the  land,  or  that  authorizes  the 
vendee  to  remove  such  improvements  after  purchase.  This  statute, 
put  in  force  In  the  Indian  Territory  by  an  act  of  Congress  (Act 
May  2,  1890,  c.  182,  §  31,  26  Stat.  81)  was  adopted  from  the  state  of 
Arkansas,  where  it  had  received  construction  by  the  highest  appel- 
late court  of  that  state  before  its  adoption  (Cotton  v.  Penzel,  44  Ark. 
484;  Galbreath,  Stewart  &  Co.  v.  Davidson,  25  Ark.  490,  99  Am.  Dec. 
233;  McCullough  v.  Caldwell,  5  Ark.  237;  in  which  cases  it  is  held 
that  it  was  the  design  that  the  lien  should  attach  to  real  property  and 
not  to  merely  personal  property). 


§§  16-18  MECHANICS'  LIENS — SUPPLEMENT.  g 

Additional  matter  to  foot-note  35.30 
Additional  matter  to  foot-note  38.31 

§  17.     Same.    Lien  on  the  fund.32 

§  18.  The  kinship  between  statutes  of  the  various  states. 
Where  a  construction  is  given  to  a  statute  by  the  highest 
court  of  a  state,  and  such  statute  is  adopted  by  another  state, 
the  courts  of  the  latter  will  presume  that  the  legislature 
intended  such  construction  to  be  placed  upon  the  statute, 
and  it  will  be  followed  by  the  courts  in  applying  the  statute, 
and  such  construction  is  adopted  with  the  statute  and  forms 
a  part  of  it,33  unless  it  appears  that  the  decision  of  the  for- 
eign court  is  based  on  unsound  reasoning,  or  the  application 
of  the  decision  would  lead  to  the  denial  of  a  substantial 
right.34 

Additional  matter  to  foot-note  41.35 

The  decisions  In  the  following:  cases  are  based  upon  such  statutory 
provisions,  referred  to  in  the  text. 

Michigan.  Jossman  v.  Rice,  121  Mich,  270,  80  N.  W.  Rep.  25,  80 
Am.  St.  Rep.  493. 

Montana.  Grand  Opera  House  v.  Magruire,  14  Mont.  558,  37  Pac. 
Rep.  607. 

North  Dakota.     Mahon  v.  Surerus,  9  N.  D.  57,  81  N.  W.  Rep.  64. 

so  Nebraska.  Compare  Western  C.  M.  Co.  v.  Leavenworth,  52  Neb. 
418,  72  N.  W.  Rep.  592. 

I  mil.  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah,  June  19, 
1909),  103  Pac.  Rep.  254,  259. 

31  California.     See  John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328.  332, 
111   Pac.   Rep.   9    (on   hearing:  in   the  Supreme  Court),   s.   c.,  Court  of 
Appeals,  8  Cal.  App.  Dec.  350.  ' 

32  See   ${  550   et  seq.,  post,  and  notes. 

33  Montana.     McQueeney  v.  Toomey,  36  Mont.   282,  92  Pac.   Rep.   561, 
122   Am.   St.   Rep.    358;    State   Sav.   Bank   v.    Albertson,    39   Mont.    414, 
102  Pac.  Rep.   692;   Deer  Lodge  County  v.  United  States  F.   &  G.  Co. 
(Mont.,  Dec.  6,  1910),  112  Pac.  Rep.  1060,  1064. 

Oklahoma.     Jarrell  v.  Block,  19  Okl.  467,  92  Pac.  Rep.  167,  168. 

34  Montana.      Deer    Lodge    County    v.    United    States    F.    &    G.    Co. 
(Mont.,  Dec.  6,  1910),  112  Pac.  Rep.  1060,  1064;  State  v.  Mott,  29  Mont. 
292,  74  Pac.  Rep.  728. 

33  Alaska.  The  Montana  and  Iowa  statutes  are  practically  the 
same  as  the  Alaska  statute:  Copper  River  L.  Co.  v.  Clark,  3  Alaska 
635,  639. 

Sf  262-205.  Carter's  Alaska  Code,  although  said  to  have  been  taken 
from  the  law  of  California  of  1868,  omits  the  specific  provision  of 
the  California  statute  which  gave  a  lien  for  the  ordinary  work  of 
a  miner  in  a  mine;  and  it  differs  from  the  lien  statutes  of  Oregon, 
California,  Nevada  and  Colorado  in  that  it  limits  the  lien  of  a  miner 


SCOPE  AND  CONSTRUCTION  OF  THE  LAW. 

§  19.    General  peculiarities  of  mechanics'  liens. 
Additional  matter  to  foot-note  42.36 


to  the  work  done  In  the  development  or  improvement  of  a  mine: 
Pioneer  M.  Co.  v.  Delamotte  (C.  C.  A.),  185  Fed.  Rep.  752. 

Arkansas.     See  Oklahoma,  this  note,  post. 

California.     See  Alaska,  this  note,  ante. 

Colorado.     See   Alaska,  this  note,  ante. 

Indian  Territory.,    See  Oklahoma,   this  note,  post. 

Iowa.     See  Alaska,  this  note,  ante. 

Kansas.     See   Oklahoma,   this   note,   post. 

Montana.     See  Alaska,   this  note,  ante. 

Nevada.     See  Alaska,  this  note,  ante. 

New  Mexico.  The  case  of  Birmingham  I.  Foundry  v.  Glnreon  S. 
Mfg.  Co.,  78  N.  Y.  30,  is  under  a  statute  more  restrictive  in  its  terms 
than  the  New  Mexico  statute,  which  is  general  and  does  not  restrict 
the  lien  only  to  cases  where  materials  are  sold  and  delivered  in  New 
Mexico:  Steams-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14  N.  M. 
300,  93  Pac.  Rep.  706,  709. 

New  York.     See  New  Mexico,  this  note,  ante. 

Oklahoma.  §  2869  Ind.  T.  Ann.  St.  was  adopted  from  §  4402  Mansf. 
Dig.  Stat.  of  Arkansas:  Keel  v.  Ingersoll  (Okl.,  September  13,  1910), 
111  Pac.  Rep.  214,  215.  But  the  mechanics'  lien  law  of  Oklahoma 
(Code  Civ.  Proc.,  §§  619  et  seq.;  Wilson's  Rev.  &  Ann.  St.  1903,  §§  4817 
et  seq.),  was  taken  from  the  mechanics'  lien  law  of  Kansas:  Keel  v. 
Ingersoll  (Okl.,  September  13,  1910),  111  Pac.  Rep.  214,  215;  Bloch  v. 
Pearson,  19  Okl.,  422,  91  Pac.  Rep.  714. 

Oregon.     See  Alaska,   this  note,   ante. 

36  Mechanics'    lien    creature   of   statute: 

Arkansas.     Murray  V.   Rapley,   30   Ark.   568.    ' 

California.  Holt  Mfg.  Co.  v.  Collins,  154  Cal.  265,  271,  97  Pac.  Rep. 
516;  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621,  110  Pac.  Rep. 
474,  475;  Davis  v.  Treacy,  8  Cal.  App.  395,  97  Pac.  Rep.  78  (hearing 
denied  by  Supreme  Court) ;  Goldtree  v.  City  of  San  Diego,  8  Cal.  App. 
505,  509,  97  Pac.  Rep.  216  (hearing  by  Supreme  Court  denied),  s.  c., 
8  Cal.  App.  512,  97  Pac.  Rep.  218. 

Kansas.  Potter  v.  Conley  (Kan.,  January  7,  1911),  112  Pac.  Rep. 
608,  609. 

Minnesota.     Toledo  N.  Works  v.  Bernheimer,   8  Minn.    118    (Gil.   92). 

Mississippi.     See   Eller's  Admr.   v.   Elder,    51   Miss.    495. 

Nevada.  Porteous  Dec.  Co.  v.  Fee,  29  Nev.  380,  91  Pac.  Rep.  135; 
Tonopah  L.  Co.  v.  Nevada  A.  Co.,  30  Nev.  445,  97  Pac.  Rep.  636,  639. 

New  Mexico.  Burton-Lingo  Co.  v.  Patton  (N.  M.,  February  28, 
1910),  107  Pac.  Rep.  679,  680. 

Oklahoma.  Albert!  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547;  Keel 
v.  Ingersoll  (Okl.,  September  13,  1910),  111  Pac.  Rep.  214;  Christy  v. 
Union  O.  &  G.  Co.  (Okl.,  March  21,  1911),  114  Pac.  Rep.  740;  Shirley 
v.  Union  O.  &  G.  Co.  (Okl.,  March  21,  1911),  114  Pac.  Rep.  742;  Peace- 
able Creek  C.  Co.  v.  Jackson,  26  Okl.  1,  108  Pac.  Rep.  409,  411. 

Oregon.  Durkheimer  v.  Copperopolis  C.  Co.  (Oreg.,  November  15, 
1909),  104  Pac.  Rep.  895,  898. 

Texas.     Pratt  v.  Tudor,  14  Tex.  39;  Shields  v.  Morrow,  51  Tex.  393. 

Utah.  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah,  June  12,  1909), 
103  Pac.  Rep.  254,  257. 


§S  ]9-21  MECHANICS'  LIENS — SUPPLEMENT.  10 

Additional  matter  to  foot-note  43.37 
Additional  matter  to  foot-note  44.38 
Additional  matter -to  foot-note  45.39 
Additional  matter  to  foot-note  47.40 

§  20.  Relation  of  lien  to  the  debt.  The  debt  created  by 
furnishing  materials  or  labor  and  the  lien  given  therefor  by 
the  statute  are  two  distinct  matters;  the  former  may  be 
enforced  as  any  other  debt,  while  the  lien  exists  only  by 
the  statute  and  must  be  enforced  by  such  special  proceeding 
as  may  be  provided  for  that  purpose.41 

Additional  matter  to  foot-note  50.42 

§  21.    Mechanic's  lien  and  mortgage  compared. 
Additional  matter  to  foot-note  53.43 


Washington.  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  101  Pac. 
Rep.  869,  102  Pac.  Rep.  766;  Crane  Co.  v.  Erie  H.  Co.  (Wash.,  December 
20,  1910),  112  Pac.  Rep.  430,  432. 

\\  u.-oiixlii.     See  Bertheolot  v.  Parker,   43  Wis.  551. 

37  Statute  measure  of  right  and  mode  of  securing  right  I 
Minnesota.     Toledo  N.  Works  v.  Bernheimer,   8  Minn.   118,   (Gil.  92). 
Oklahoma.     Christy   v.    Union    O.    &    Q.    Co.    (Okl.,   March    21,    1911), 

114  Pac.  Rep.  740;  Shirley  v.  Union  O.  &  G.  Co.  (Okl.,  March  21,  1911). 
114  Pac.  Rep.  742. 

WiiMhlnKton.  See  Finley  v.  Tagholm  (Wash.,  March  8,  1911),  113 
Pac.  Rep.  1083,  s.  c.,  Ill  Pac.  Rep.  782. 

38  Statute  rule   of   mode  of  enforcement: 

California.  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  486,  94 
Pac.  Rep.  773;  McNiel  v.  Borland,  23  Cal.  149;  Los  Angeles  P.  B.  Co. 
V.  Higgins,  8  Cal.  App.  514,  520,  97  Pac.  Rep.  414,  420. 

so  Compliance  with  termn  of  xtatute: 

KIIIINIIM.  Those  claiming  a  lien  must  bring  themselves  clearly  within 
the  provisions  of  the  law:  Potter  v.  Conley  (Kan.,  January  27,  1911), 
112  Pac.  Rep.  608,  609. 

40  Inchoate   Hen: 

\bi I. num.     Porter   &   Co.   v.   Miles,   67   Ala.    130. 

California.  See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  512, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

Nevada.     Porteous  Dec.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135,  136. 
Oklahoma.     Albert!  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 

41  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  520, 
97  Pac.  Rep.  414,  420. 

42  California.     See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App,  505,  512, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

43  Idaho.     See  Valley  L.   &  Mfg.   Co.   v.  Nickerson,   13   Idaho   682,   93 
Pac.  Rep.  24,  27. 


SCOPE  AND  CONSTRUCTION  OF  THE  LAW.      §8  21     22 

Additional  matter  to  foot-note  55.44 

§  22.    Nature  of  action  to  foreclose  lien. 

Additional  matter  to  foot-note  57. 45 
Additional  matter  to  foot-note  58. 46 


44  Idaho.     Mechanic's  Hen  and  mortgage.    There   is  a  very  material 
difference   between  a  mortgage  lien  and  a  mechanic's  lien.     The   first 
is  given  by  contract,  and  'in  many  instances  the  debt  secured  may  be 
practically   as   much   as   the   value    of    the   property,    and    in    most   all 
instances  considerable  time  elapses  before   the  maturing  of  the  debt, 
in  which  case  there   is  ample   opportunity   for  property   to  depreciate 
in  value.     On  the  other  hand,  the  mechanic's  or  laborer's  lien  is  invol- 
untary on  the  part  of  the  property  owner,  and  arises  by  operation  of 
law  as  an   incident  to   the   original   contract.     In    every   instance   of  a 
lien,  however,  the  debt  and  obligation  for  which  the  lien   is  given   is 
only   so  much   as   has  been   incurred   by   the   creation    or   improvement 
of   the   property   itself   and   the    whole   sum   has    gone   to   enhance   the 
value  of  the  property  on  which  the  lien  is  claimed.     The  time  allowed 
for  preferring  the  lien  claim  is  so  short  that  there  is  but  little  oppor- 
tunity for  the  property  to  so  depreciate  in  value  that  it  will  not  sell 
on  the  market  for  an  amount  equal  to  the  claim  for  labor  or  material 
or    both    that   has    been    furnished:     Naylor    &    Nowlin    v.    Lewiston    & 
S.  E.  E.  Ry.  Co.,  14  Idaho,  722,  95  Pac.  Rep.  827,  829,  s.  c.,  96  Pac.  Rep.  573. 
The   foregoing  was   said   with   reference   to   stay   bonds,   and   does   not 
appear  to  touch  upon  all  the  essential  differences  between  mortgages 
and  mechanics'   liens. 

45  Action  to   foreclose   equitable: 

Alaska.  Pioneer  M.  Co.  v.  Delamotte  (C.  C.  A.),  185  Fed.  Rep.  752, 
756. 

Arkansas.      See   Oklahoma,    this   note,    post. 

California.  Stockton  L.  Co.  v.  Schuler,  7  Cal.  App.  257,  94  Pac.  Rep. 
399;  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  520,  97  Pac.  Rep. 
414,  420. 

Illinois.      Tracy   V.    Rogers,    69    111.    662. 

Indian  Territory.      See  Oklahoma,  this  note,  post. 

Oklahoma.  The  lien  may  be  enforced  either  in  equity,  or,  accord- 
ing to  the  statute,  in  a  suit  at  law,  in  Indian  Territory:  Jones  v. 
Balsley  '(Okl.,  September  13,  1910),  111  Pac.  Rep.  942,  s.  c.  25  Okl.  344, 
106  Pac.  Rep.  830;  Murray  v.  Rapley,  30  Ark.  569;  Kizer  L.  Co.  v. 
Mosely,  56  Ark.  544,  20  S.  W.  Rep.  409. 

Washington.  Pacific  L.  &  T.  Co.  v.  Dailey  (Wash.,  November  23, 
1910),  111  Pac.  Rep.  869,  870. 

46  Action   in   rent: 

California.  See  Los  Angeles  County  v.  Winans,  13  Cal.  App.  234, 
10.9  Pac.  Rep.  640,  650. 

Federal.  Heidritter  v.  Oil  C.  Co.,  112  U.  S.  294,  301,  5  Sup.  Ct.  Rep. 
135,  138,  28  L.  ed.  729. 

Idaho.  The  charge  is  purely  in  rem:  Valley  L.  &  Mfg.  Co.  v.  Nick- 
erson,  13  Idaho,  682,  93  Pac.  Rep.  24,  27. 

Montana.  See  Gassert  v.  Strong,  38  Mont.  18,  98  Pac.  Rep.  497,  500 
(mortgage,  quasi  in  rem). 

Oklahoma.  Jones  v.  Balsley,  111  Pac.  Rep.  942,  s.  c.  25  Okl.  344, 
106  Pac.  Rep.  830. 


§§  22-25  MECHANICS'  LIENS — SUPPLEMENT.  12 

Additional  matter  to  foot-note  60.47 

§  23.    Nature  and  scope  of  right  conferred. 
Additional  matter  to  foot-note  61.48 

§  24.     Construction  of  mechanics '-lien  statutes. 

Additional  matter  to  foot-note  62.49 

§  25.  Same.  Confusion  in  the  authorities.  The  law  of 
interpretation  relating  to  mechanics'  lien  statutes  in  Califor- 
nia, it  is  said,  has  recently  been  in  a  state  of  transition.50 
The  courts  declare,  however,  that  they  are  not  required  to 
give  a  strained  construction  to  the  statute  to  enable  persons 
to  collect  their  debts  from  parties  who  never  agreed  to  pay 
them  and  who  never  requested  the  performance  of  the  work 
or  delivery  of  the  materials.51 

47  (. nriii-.li mi- nt    proceeding    on    fund   equitable: 

California.  Goldtree  v.  City  of  San.  Diego,  8  Cal.  App.  505,  510, 
97  Pac.  Rep.  216  (hearing  denied  by  Supreme  Court),  s.  c.  8  Cal.  App. 
512,  97  Pac.  Rep.  218. 

48  California.     AM   to   assignment    of   right    conferred   by    notice,    see 
Goldtree  v.  City  of  San   Diego,   8  Cal.  App.   505,   512,   97   Pac.   Rep.    216 
(hearing   by   Supreme   Court   denied),    s.   c.,    8   Cal.   App.    612,    97    Pac. 
Rep.   218. 

Assignment  of  claim  of  lien  on  harvester  under  act  of  March  21, 
1905,  Stats.  1905,  p.  618  (now  §  3061  Civ.  Code);  see  Lemon  v.  Hubbard, 
10  Cal.  App.  471,  102  Pac.  Rep.  554. 

Arlsona.  See  Harper  v.  Independence  D.  Co.  (Ariz.,  April  2,  1910), 
108  Pac.  Rep.  701,  703. 

Oregon.  Right  to  perfect  logging  lien  under  B.  &  C.  Comp.,  St§  5677- 
5679,  held  personal,  and  can  not  be  assigned:  Alderson  v.  Lee,  52 
Oreg.  92,  96  Pac.  Rep.  234,  237. 

40  Construction  of  statute  of  sister  state  by  adoption  of  such  statute: 

Montana.  Deer  Lodge  County  v.  United  States  F.  &  Q.  Co.  (Mont., 
December  6,  1910),  112  Pac.  Rep.  1060,  1064;  McQueeney  v.  Toomey, 
36  Mont.  282,  92  Pac.  Rep.  561,  122  Am.  St.  Rep.  358;  State  Sav.  Bank 
v.  Albertson,  39  Mont.  414,  102  Pac.  Rep.  692;  State,  v.  Mott,  29  Mont. 
292.  74  Pac.  Rep.  728. 

Oklahoma.     Jarrell  v.  Block,  19  Okl.  467,  92  Pac.  Rep.  167,  168. 

See  text  and  notes  this  Supplement,   |  18,  ante. 

Oregon.  As  to  legislative  construction  of  statute  providing  for 
Hen  on  coal  mines,  see  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  January 
25,  1910),  106  Pac.  Rep.  452,  455;  Portland  R.  L.  &  P.  Co.  v.  Railroad 
Com.  (Oreg.,  December  21,  1909),  105  Pac.  Rep.  709. 

so  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  524 
(on  petition  for  rehearing),  97  Pac.  Rep.  414,  420. 

si  California.  Stelger  T.  C.  &  P.  Works  v.  City  of  Sonoma,  9  Cal. 
App.  698,  703,  100  Pac.  Rep.  714  (hearing  in  Supreme  Court  denied); 
Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  97  Pac.  Rep.  419; 


13  SCOPE  AND  CONSTRUCTION  OF  THE  LAW.  §  25 

Additional  matter  to  foot-note  63.52 
Additional  matter  to  foot-note  65.53 
Additional  matter  to  foot-note  66.54 


Hogan  v.  Bigler,  8  Cal.  App.  71,  73,  96  Pac.  Rep.  97  (hearing  in  Su- 
preme Court  denied),  quoting  from  Buell  v.  Brown,  131  Cal.  158, 
63  Pac.  Rep.  167. 

Nevada.  There  are  certain  plain  requirements  prescribed  by  the 
statute  which  are  legally  essential  to  the  validity  of  every  lien,  and 
without  which  it  can  not  be  enforced.  Whatever  is  made  necessary 
to  the  existence  of  the  lien  must  be  performed  or  the  attempt  to  create 
it  will  be  futile.  A  substantial  adherence  to  the  terms  of  the  statute 
in  the  notice  of  lien  is  indispensable:  Porteous  Dec.  Co.  v.  Fee,  29 
Nev.  375,  91  Pac.  Rep.  135,  136. 

Oklahoma.  In  such  case,  the  law  should  be  couched  in  clear  and 
unambiguous  language:  Christy  v.  Union  O.  &  G.  Co.  (Okl.,  March  21, 
1911),  114  Pac.  Rep.  740;  Shirley  v.  Union  O.  &  G.  Co.  (Okl.,  March  21, 
1911),  114  Pac.  Rep.  742. 

52  Oregon.     In    derogation    of    the    common    law    and    can    be    estab- 
lished   only    by    a    plain    compliance    with    the    requirements    of    the 
statute:     Coffey   v.    Smith,    52    Oreg.,    538,    97    Pac.    Rep.    1079,    s.    c.    52 
Oreg.  545,  97  Pac.  Rep.  1081,  s.  c.,  52  Oreg.  546,  97  Pac.  Rep.  1082. 

53  Substantial   compliance   required: 

California.  Davis  v.  Treacy,  8  Cal.  App.  395,  97  Pac.  Rep.  78  (hear- 
ing denied  by  Supreme  Court). 

Kansas.  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac. 
Rep.  80,  82  (as  to  claim  of  lien). 

Nevada.     Porteous  Dec.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135,  136. 

Oklahoma.  Implications  extending  the  operation  of  the  lien  law 
in  favor  of  subcontractors  are  not  favored.  Parties  claiming  rights 
thereunder  are  required  to  show  that  they  can  bring  themselves 
within  the  plain  terms  of  the  law  and  where  they  do  not,  they  are 
excluded  from  its  benefits:  Christy  v.  Union  O.  &  G.  Co.  (Okl.,  March 
21,  1911),  114  Pac.  Rep.  740;  Shirley  v.  Union  O.  &  G.  Co.  (Okl.,  March 
21,  1911),  114  Pac,  Rep.  742. 

See  also  Shields  V.  Morrow,  51  Tex.  393;  Ayers  v.  Revere,  25  N.  J. 
Law,  474;  Bertheolot  v.  Parker,  43  Wis.  551. 

54  Liberal  construction  to  effect  objects  and  promote  justice: 
California.     Baker   v.   Lake   L.   C.    &   I.    Co.,   7   Cal.   App.    482,    486,    94 

Pac.  Rep.  773. 

Federal.  Alaska  Pioneer  M.  Co.  v.  Delamotte  (C.  C.  A.),  185  Fed. 
Rep.  752,  755. 

Kansas.  See  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103 
Pac.  Rep.  80,  82. 

Utah.  See  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah,  June  12, 
1909),  103  Pac.  Rep.  254,  257. 

Washington.  Cornelius  v.  Washington  S.  L.,  52  Wash.  272,  100  Pac. 
Rep.  727,  729  (under  Ballinger's  Ann.  Codes  &  Stat.  §5917;  Pierce's 
Code,  §  6119);  Smythe  v.  Lance,  52  Wash.  560,  100  Pac.  Rep.  995  "(under 
express  provision  of  Ballinger's  Ann.  Codes  &  Stat.,  §  5909;  Pierce's 
Code,  §6111);  Lindley  v.  McGlauflin,  58  Wash.  636,  109  Pac.  Rep.  118, 
s.  c.  57  Wash.  581,  107  Pac.  Rep.  355  (under  Rem.  &  Bal.  Code,  §  1147, 
as  to  number  of  claims  of  lien  that  may  be  filed).  And  see  Finlay  v. 
Tagholm  (Wash.,  March  8,  1911),  113  Pac.  Rep.  1083,  s.  c.  Ill  Pac.  Rep. 
782  (as  to  requirement  of  mailing  duplicate  statement). 


§§25    27  MECHANICS'  LIENS— SUPPLEMENT.  ]_£ 

Additional  matter  to  foot-note  67.55 
Additional  matter  to  foot-notes  68  and  69. 56 
Additional  matter  to  foot-note  70.57 

§  27.     Same.    Resume. 

Paragraph  2.  Add :  Where,  however,  there  is  a  limitation 
as  a  part  of  the  right,  and  not  a  mere  provision  for  repose, 
the  lien  should  be  considered  as  conditionally  perfected  and 
the  rule  as  to  construction  after  perfection  applicable  only  so 
far  as  the  limitation  may  not  be  affected.58 

In  interpreting  the  mechanics'  lien  law,  it  is  not  to  be  con- 
sidered as  a  general  law  relating  to  contracts  and  contractual 
relations,  but  a  means  provided  whereby  the  laborer,  me- 
chanic or  material-man  may  make  known  his  intention  to 
exercise  his  constitutional  right  and  enforce  his  lien.59 

The  California  mechanics'  lien  statute  is  intended  to  supply 
the  means  for  the  enforcement  of  liens  provided  for  by  the 

65  Montana.  See  Lane  v.  Lane-Potter  L.  Co.,  40  Mont.  541,  107  Pac. 
Rep.  898. 

Oregon.     See  Laughlin  v.  Connors,  54  Oreg.   184,  102  Pac.  Rep.   793. 

86  Remedial  statute;  liberally  construed  i 

Arlcona.  See  Murphy  v.  Brown  (Ariz.),  100  Pac.  Rep.  801  (con- 
struction of  statute  giving  lien  for  rent). 

Federal.  See  Chauncey  v.  Dyke  Bros.,  55  C.  C.  A.  579,  119  Fed.  1 
(Arkansas  statute). 

Montana.  See  Smallhouse  v.  Kentucky  &  M.  G.  &  S.  M.  Co.,  2  Mont. 
443.  445. 

Nevada.     Porteous  Dec.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135,  136. 

Oklahoma.  Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  546.  See 
Peaceable  Creek  C.  Co.  v.  Jackson,  26  Okl.  1,  108  Pac.  Rep.  409,  411. 

M  Montana.  The  manner  of  perfecting  a  mechanic's  lien  consists  of 
various  steps,  which  are  purely  statutory:  Neuman  v.  Grant,  36  Mont. 
77,  92  Pac.  Rep.  43  (quoting  from  McGlauflin  v.  Wormser,  28  Mont. 
177,  72  Pac.  Rep.  428,  as  set  forth  in  note  69  to  Treatise,  ante). 

58  Utah.     The  more  modern  «Ieel«lon»  are  practically  harmonious   in 
holding  that  where  there  has  been  a  substantial  compliance  with  the 
statute  giving  the  lien,  and  the  lien  has  in  fact  been  established,  the 
lien  so  established  will  not  be  defeated  by  mere  technicalities  or  by 
nice  distinctions:    Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah,  June 
12,  1909),  103  Pac.  Rep.  254,  258;  particularly,  where  the  lien  has  been 
foreclosed,  and  the  rights  of  third  parties  have  intervened.     Ibidem, 
citing  this   section   of  Treatise.     See  Lumber   Co.   v.   Martin,   31   Utah 
249,  87  Pac.  Rep.  714. 

59  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  524, 
97  Pac.  Rep.   414,   420;  Steiger  T.  C.  &  P.   Works  v.  City  of  Sonoma, 
9   Cal.   App.   698,   703,    100   Pac.   Rep.    714    (hearing   in    Supreme   Court 
denied). 


15  SCOPE  AND  CONSTRUCTION  OF  THE  LAW.  §  27 

constitution,60  and  will  be  construed  with  a  view  to  accom- 
plish the  constitutional  purpose.  In  so  far  as  the  act  affects 
the  right  to  contract,  it  will  be  limited  in  its  operation  to 
the  persons  whom  the  constitution  and  statute  intended  to 
protect  by  giving  a  lien,  and  to  such  contracts  of  these  per- 
sons as  relate  to  and  affect  the  lien.61 
Additional  matter  to  foot-note  79. 62 


GO  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Gal.  App.  514,  524, 
97  Pac.  Rep.  414,  420;  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505, 
509,  97  Pac.  Rep.  216,  s.  c.  8  Cal.  App.  512,  97  Pac  Rep.  218;  Steiger 
T.  C.  &  P.  Works  v.  City  of  Sonoma,  supra. 

61  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  524, 
97    Pac.    Rep.    414,    420;   Steiger   T.   C   &   P.   Works   v.    City    of   Sonoma, 
supra. 

62  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  524, 
97  Pac.  Rep.  414,  420. 

Wyoming.  Construction  of  law  passed  by  virtue  of  constitutional 
command,  in  the  light  of  such  command  and  consistent  therewith, 
see  Burton  v.  Union  Pac.  C.  Co.  (Wyo.),  107  Pac.  Rep.  391. 


28  MECHANICS'  LIENS— SUPPLEMENT. 


CHAPTER  II. 

CONSTITUTIONAL  ASPECTS  AND  THE  LAW  APPLICABLE. 

§  28.  Constitutional  Provisions  creating  the  lien.  The 
earlier  cases  decided  after  the  adoption  of  the  California 
constitution  of  1879  failed  to  recognize  distinctly  the  con- 
dition of  the  law  relating  to  the  mandatory  liens  provided 
for  by  that  instrument.  There  was  no  special  provision  in 
the  constitution  of  1849,  or  the  amendments  thereof,  for  a 
mechanic's  lien.  The  lien  law  existing  before  the  amend- 
ment of  the  statute  in  1911 l  was  enacted  prior  to  the  con- 
stitution of  1879  in  its  main  features,  and  the  lien,  it  is  said, 
was  therefore  entirely  a  creature  of  statute.2 

It  is  claimed  that,  up  to  the  change  in  the  law  of  1911,  no 
new  procedure  had  been  provided,  although  there  were 
numerous  amendments  of  the  statutory  provisions  contained 
in  the  code.3 

The  phraseology  of  the  law,  which  in  all  its  provisions 
implied  that  the  lien  was  of  legislative  creation,  up  to  1911, 
was  not  revised  to  meet  the  change  caused  by  the  adoption 
of  the  constitution  of  1879,  and  is  said  to  have  been  gram- 
matically, at  any  rate,  out  of  harmony  with  the  view  that 
the  right  of  lien  was  due  to  the  constitutional  provision. 

In  the  later  cases  the  recognition  of  the  constitutional  or- 
igin of  the  right  to  the  mandatory  liens  and  the  true  rela- 
tion of  the  statute  is  much  clearer  than  in  the  earlier  de- 
cisions.4 The  construction  of  the  constitutional  provision  is 

1  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

2  California.     D.    I.    Nofziger    L.    Co.    v.    Solomon,    13    Cal.    App.    621, 
110   Pac.  Rep.   474,   475. 

s  California.  D.  I.  Nofziger  L.  Co.  v.  Solomon,  supra.  See  Ger- 
mania  B.  &  L.  Assoc.  v.  Wagner,  61  Cal.  349. 

4  California.  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621, 
110  Pac.  Rep.  474,  475:  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505, 
508,  97  Pac.  Rep.  216  (petition  for  hearing  In  Supreme  Court  denied); 
s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218.  See  Los  Angeles  P.  B.  Co.  v. 
Hlgglns,  8  Cal.  App.  514,  518,  519,  97  Pac.  Rep.  414,  420;  Hampton  v. 
Christensen,  148  Cal.  72-9,  737,  84  Pac.  Rep.  200,  203;  Hughes  Bros.  v. 


CONSTITUTIONAL,  ASPECTS—  LAW  APPLICABLE. 


§  28 


swinging  towards  the  interpretation  given  by  the  courts  of 
Texas  and  other  states  having  similar  constitutional  pro- 


visions.5 

The  legislature,  it  is  said  in  a  recent  case,  has  certainly 
gone  as  far  in  the  protection  of  the  owner  by  only  seques- 
trating the  final  payment  of  twenty-five  per  cent  of  the  con- 
tract price  under  the  law,  as  it  existed  before  the  amend- 
ment of  1911,  unconditionally  to  the  payment  of  the  lien 
claims,  where  the  contract  is  valid,  and  in  considering  this 
a  sufficient  reservation  to  cover  the  full  value  of  labor  done 
and  materials  furnished  for  which  the  constitution  provides 
a  lien  ;6  although  by  the  provision  for  notice  to  the  owner  it 
was  in  the  power  of  the  claimant  to  enlarge  the  fund  so  as 
to  meet  the  obligation  due  to  him.  And  it  has  been  said  that 
the  constitutional  provision  is  self -executing.7 

Additional  matter  to  foot-note  2.8 

Additional  matter  to  foot-note  4.9 

Additional  matter  to  foot-note  7.10 

Additional  matter  to  foot-note  8.11 

Additional  matter  to  foot-note  II.12 

Additional  matter  to  foot-note  12.13 

Additional  matter  to  foot-note  16. 14 


Hoover,  3  Cal.  App.  150,  84  Pac.  Rep.  681;  Los  Angeles  P.  B.  Co.  v. 
Los  Angeles  P.  B.  &  D.  Co.,  7  Cal.  App.  460,  461,  94  Pac.  Rep.  775; 
Barrett-Hicks  Co.  V.  Glas  (Cal.  App.),  Ill  Pac.  Rep.  760,  765;  s.  c., 
9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub.  nom.  Burnett  v.  Glas,  154 
Cal.  249,  97  Pac.  Rep.  423;  Miltimore  v.  Nofziger  Bros.  L.  Co.,  150  Cal. 
790,  90  Pac.  Rep.  114. 

5  See  §  29,  this  Supplement,  post. 

6  California.     Barrett-Hicks   Co.    v.    Glas    (Cal.    App.),    Ill    Pac.    Rep. 
760,  765;  s.  c.  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.  sub.  nom.  Burnett 
V.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

7  California.     Barrett-Hicks,  Co.   v.    Glas    (Cal.    App.),    Ill    Pac.    Rep. 
760,  765;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub.  nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

8  Barrett-Hicks  Co.  v.  Glas,  supra. 

9  Barrett-Hicks  Co.  v.  Glas,   supra. 

10  Barrett-Hicks   Co.   v.   Glas,  supra;   Los  Angeles  P.   B.   Co.   v.    Hig- 
gins,  8  Cal.  App.  514,  519,  97  Pac.  Rep.  414,  420. 

11  California.      D.    L    Nofziger   L.    Co.    v.    Solomon,'    13    Cal.   App.    621, 
110  Pac.  Rep.   474,   475. 

12  California.     D.    I.   Nofziger   L.    Co.    v.    Solomon,    13    Cal.    App.    621, 
110  Pac.  Rep.  474,  475. 

is  California.     D.  I.  Nofziger  L.   Co.  .V.   Solomon,   supra. 
14  California.     Goldtree   v.   City   of   San    Diego,   8   Cal.   App.    505,    508, 
Bloom's  Sup. — 2 


§§28a,29  MECHANICS'  LIENS — SUPPLEMENT.  }g 

.i  28a.  Same.  Application  of  constitutional  provision  to 
state  and  municipalities.  Although  no  exception  as  to  public 
and  municipal  property  is  made  by  the  provision  of  the  con- 
stitution of  California,  providing  for  mechanics'  liens,15  by 
reason  of  other  constitutional  provisions  and  public  policy,  it 
is  not  to  be  construed  as  extending  to  municipalities  or  the 
state,  and  as  not  warranting  a  lien  upon  public  property ;  but 
there  is  ample  authority  in  the  California  decisions  extending 
the  power  to  the  courts  to  render  judgments  against  munici- 
palities enforcing  an  equitable  lien,  under  the  statute,  upon 
an  improvement  fund,  for  the  benefit  of  subcontractors  and 
laborers  who  worked  upon  the  improvement,  for  the  con- 
struction of  which  the  fund  was  provided.16 

§  29.  Same.  Operation  of  the  constitution.  As  already 
suggested, 16a  the  more  recent  decisions  of  the  supreme  court 
recognize  the  force  of  the  constitutional  declaration  of  the 
mandatory  liens.  In  view  of  the  enactment  of  the  amend- 
ments of  1911  to  the  California  Code  of  Civil  Procedure,  and 
the  reactionary  tendency  of  the  later  decisions  of  that  state 
towards  the  construction  given  to  the  constitutions  of  Texas 
and  other  states  having  similar  constitutional  provisions,  a 
summary  of  such  decisions  is  appended.17 

97  Pac.  Rep.  216  (hearing  In  Supreme  Court  denied);  s.  c.,  8  Cal.  App. 
512,  97  Pac.  Rep.  218. 

is  California.     §6,  Art.  XX,  Constitution  of  California  of  1879. 

16  California.     Goldtree  v.   City   of   San    Diego,   8   Cal.   App.    505,   510, 
97  Pac.  Rep.  216  (hearing  in  Supreme  Court  denied);  s.  c.,  8  Cal.  App. 
512.     See  San  Francisco  G.   Co.  v.  San   Francisco,   9  Cal.   453;   Zottman 
v.  San  Francisco,  20  Cal.  96,  81   Am.  Dec.  96;  Spring  Valley  W.  Works 
v.  San   Francisco,  82  Cal.  286,   22  Pac.  Rep.   910,   1046;   16   Am.  St.  Rep. 
116;    Contra    Costa    v.    Breed,    139    Cal.    432,    73    Pac.    Rep.    189;    Mc- 
Conoughey  v.  Jackson,  101  Cal.  265,  35  Pac.  Rep.  863,  40  Am.  St.  Rep. 
53;  Bates  v.  Santa  Barbara,  90  Cal.  543,  27  Pac.  Rep.  438. 

See  {  29a,  this  Supplement,  post. 

i«a  §  19,  note  42,  and  §  28,  this  Supplement,  ante. 

17  i  ..lint itutioit    of    Georgia.     The    constitution    of    Georgia    provides 
that  mechanics  and  laborers  shall  have  a  lien  upon   the  property  of 
their  employers  for  labor  performed  or  materials  furnished,  and  the 
legislature  shall  provide  for  the  summary  enforcement  of  the  same. 

Without  any  action  on  the  part  of  the  leglnlnture,  the  lien  exists  by 
virtue  of  the  constitutional  provision:  Camp  v.  Mayer,  47  Ga.  414,  427. 
See,  also,  Love  v.  Cox,  68  Ga.  272;  Langston  v.  Anderson,  69  Ga.  65: 
Allred  v.  Haile,  84  Ga.  570,  10  S.  E.  Rep.  1095;  Stonewall  Jackson 
S.  &  B.  Assoc.  v.  McGruder,  43  Ga.  9;  Georgia  L.  S.  &  B.  Co.  v.  Dunlop, 
108  Ga.  218;  Tarver  v.  Fleming,  53  Ga.  297. 


J9  CONSTITUTIONAL  ASPECTS — LAW  APPLICABLE.  S  29 

Claimants  cannot  be  deprived  of  constitutional  mandatory 
liens.  Following  the  decisions  of  other  states  having  similar 
constitutional  provisions,  it  has  been  lately  held  that  with- 

Constitution  of  North  Carolina.  "Every  building  built,  rebuilt  or 
improved  shall  be  subject  to  a  lien  for,  the  payment  of  all  debts  con- 
tracted for  work  done  on  the  same  or  materials  furnished":  Revisal 
of  1905,  §  2016,  art.  14,  §  4. 

See  Healey  I.  M.  Co.  v.  Green    (C.   C.,  N.  C.),  181  Fed.   Rep.   890,   893. 

"The  general  assembly  sha-11  provide  by  appropriate  legislation  for 
giving  to  mechanics  and  laborers  an  adequate  lien  upon  the  subject 
matter  of  their  labor":  Art.  xiv,  §  4. 

See   Brayhill   v.   Gaither,    119   N.   C.    443. 

Constitution  of  Texas.  "Artisans,  mechanics,  and  material-men  of 
every  class  shall  have  a  lien  upon  the  buildings  and  articles  made  or 
repaired  by  them,  for  the  value  of  their  labor  done  thereon,  or  thfe 
material  furnished  therefor;  and  the  legislature  shall  provide  by  law 
for  the  speedy  and  efficient  enforcement  of  said  liens": -Art.  16,  §37. 

Constitution  is  self-executing.  The  lien  exists  independently  of  any 
statutory  provision  by  reason  of  this  constitutional  provision.  It 
arises  out  of  the  transaction  and  can  not  be  created  by  contract: 
Houston  v.  Myers,  88  Tex.  126,  129,  30  S.  W.  Rep.  912,  913;  Warner  E. 
Co.  v.  Maverick,  88  Tex.  489,  492;  Johnson  v.  Amarillo  I.  Co.  88  Tex. 
505,  511,  31  S.  W.  Rep.  503;  Oriental  H.  Co.  v.  Griffiths,  88  Tex.  574, 
583,  33  S.  W.  Rep.  652,  661;  Powers  L.  Co.  v.  Wade,  15  Tex.  Civ.  App. 
295,  298,  39  S.  W.  Rep.  160;  June  v.  Doke,  35  Tex.  Civ.  App.  240,  80 
S.  W.  Rep.  405;  Bayless  v.  Standard  S.  &  L.  Assoc.,  39  Tex.  Civ.  App. 
353;  Baldwin  v.  Polti,  45  Tex.  Civ.  App.  638;  Strang  v.  Pray,  89  Tex. 
525,  35  S.  W.  Rep.  1054;  Berry  v.  McAdams,  93  Tex.  431,  55  S.  W.  Rep. 
1112;  Bassett  v.  Mills,  89  Tex.  162,  167,  34  S.  W.  Rep.  93,  95;  Beneman 
v.  Beaumont  L.  Co.,  12  Tex.  Civ.  App.  517,  529,  34  S.  W.  Rep.  198; 
United  States  &  M.  T.  Co.  v.  Western  S.  &  Mfg.  Co.  (Tex.  Civ.  App.), 
109  S.  W.  Rep.  377,  382;  Beilharz  v.  Illingsworth  (Tex.  Civ.  App.),  132 
S.  W.  Rep.  106,  109;  Howell  v.  McMurray  L.  Co.  (Tex.  Civ.  App.),  132 
S.  W.  Rep.  848;  Panhandle  T.  &  T.  Co.  v.  Kellogg  S.  &  S.  Co.  (Tex. 
Civ.  App.),  132  S.  W.  Rep.  963,  965;  Blakeney  v.  Nalle  (Tex.  Civ.  App.), 
101  S.  W.  Rep.  875. 

See,  also,  Implement  Co.  v.  Electric  L.  Co.,  74  Tex.  607,  2  S.  W.  Rep. 
489;  Trammell  v.  Mount,  68  Tex.  215,  4  S.  W.  Rep.  371;  Sullivan  v. 
Texas  B.  &  C.  Co.,  94  Tex.  541,  63  S.  W.  Rep.  307;  National  Bank  v. 
Gulf,  C.  &  S.  F.  Ry.  Co.,  95  Tex.  176,  66  S.  W.  Rep.  203;  Guarantee 
S.,  L.  &  I.  Co.  v.  Cash,  99  Tex.  555,  91  S.  W.  Rep.  782;  Hord  v.  Owens, 
20  Tex.  Civ.  App.  21,  48  S.  W.  Rep.  201;  Waters-Pierce  O.  Co.  v.  United 
States  &  M.  T.  Co.,  44  Tex.  Civ.  App.  397,  404.  And  see  Finlay  v.  Tag- 
holm  (Wash.,  March  8,  1911),  113  Pac.  Rep.  1083;  s.  c.,  Ill  Pac.  Rep. 
782,  explaining  certain  Texas,  cases  above  cited. 

A  laborer's  lien  is  not  provided  for  by  this  constitutional  provision: 
Partin  v.  Wallace  (Tex.  Civ.  App.),  121  S.  W.  Rep.  515. 

The  legislature  is  not  prohibited  from  providing  for  liens  in  cases 
not  mentioned  in  the  constitutional  provision,  nor  from  making  rea- 
sonable regulations  for,  and  providing  a  method  of,  enforcing  the  liens 
provided  for  therein:  Bassett  v.  Mills,  89  Tex.  162,  167,  34  S.  W.  Rep. 
93,  95;  Warner  E.  Co.  v.  Maverick,  88  Tex.  489,  493,  30  S.  W.  Rep.  437; 
Strang  v.  Pray,  89  Tex.  525,  528,  35  S.  W.  Rep.  1054,  1055,  s.  c.  (Tex. 
Civ.  App.),  34  S.  W.  Rep.  666. 


R  29  MECHANICS'  LIENS — SUPPLEMENT.  20 

out  constitutional  authority  the  right  to  the  lien  provided 
for  by  the  constitution  can  not  be  taken  away  by  the  legis- 
lature, either  by  legislation  or  lack  of  legislation.  The  last 
clause  of  the  constitutional  provision  requires  the  legislature 
to  provide  by  law  for  the  speedy  and  efficient  enforcement  of 
the  liens,  the  right  to  which  is  thereby  guaranteed.  The 
question  whether  or  not  under  the  circumstances  of  the  case 
the  section  was  self -executing  was  held  immaterial,  since 
the  legislature  in  obedience  thereto  had  provided  a  good  and 
sufficient  procedure  whereby  the  lien  may  be  declared  and 
enforced  against  municipalities.18 

.  Rights  of  claimants  upon  abandonment.  The  construction 
given  to  the  provisions  of  the  statute  in  California  19  in  a 
recent  case,20  so  far  as  it  limits  the  right  of  recovery  of 
claimants  upon  abandonment  of  the  contract  by  the  con- 

Nor  from  prescribing  the  time  within  which  the  steps  necessary  for 
the  protection  of  the  owner  or  purchaser  of  such  property  shall  be 
taken,  as  a  limitation  upon  the  time  for  the  enforcement  of  the  lien, 
and  such  other  thing's  as  pertain  to  the  remedy:  Strang  v.  Pray,  89 
Tex.  525,  528,  35  S.  W.  Rep.  1054,  1055,  s.  c.  (Tex.  Civ.  App.),  34  S.  W. 
Rep.  666. 

And  the  legrlMlature  may  enact  a  law  requiring;  notice  in  writing1  by 
the  subcontractor  to  the  owner,  before  the  latter  settles  with  the 
contractor:  Berry  v.  McAdams,  93  Tex.  431,  55  S.  W.  Rep.  112.  But  the 
legislature  has  no  power  to  affix  to  the  constitutional  lien  conditions 
of  forfeiture:  Strang  v.  Pray,  89  Tex.  525,  528,  35  S.  W.  Rep.  1054, 
1055,  s.  c.  (Tex.  Civ.  App.),  34  S.  W.  Rep.  666. 

And  the  power  to  facilitate  the  enforcement  of  such  lien  neither 
includes  nor  implies  the  power  to  destroy  it,  or  to  hamper  it  by  un- 
reasonable restrictions:  Johnson  v.  Amarillo  I.  Co.,  88  Tex.  505,  511, 
31  S.  W.  Rep.  503. 

And  where  there  In  no  quentlon  of  Innocent  purchaser  Involved,  the 
constitutional  lien  is  not  lost  by  a  failure  to  record  the  contract  or 
bill  of  particulars,  as  directed  by  the  statutes:  Strang  v.  Pray,  89 
Tex.  525.  528,  35  S.  W.  Rep.  1054,  1055,  s.  c.  (Tex.  Civ.  App.),  34  S.  W. 
Rep.  666.  See  June  v.  Doke,  35  Tex.  Civ.  App.  240,  245,  80  S.  W.  Rep. 
405;  Baldwin  V.  Polti,  45  Tex.  Civ.  App.  638;  Beilharz  v.  Illingsworth 
(Tex.  Civ.  App.),  132  S.  W.  Rep.  106,  109;  Farmers  &  M.  N.  Bank  v. 
Taylor,  91  Tex.  78,  40  S.  W.  Rep.  876.  966;  Padgitt  v.  Dallas  B.  &  C.  Co. 
(Tex.  Civ.  App.),  51  S.  W.  Rep.  529;  Blakeney  v.  Nalle  (Tex.  Civ.  App.), 
101  S.  W.  Rep.  875. 

isGoldtree  v.  City  of  San  Diego,  8  Cal.  App.  505.  508,  97  Pac.  Rep. 
216  (petition  for  hearing  in  the  Supreme  Court  denied);  s.  c.,  8  Cal. 
App.  512,  97  Pac.  Rep.  218. 

See  {  28a  this  Supplement,  ante. 

10  J  1200  Cal.  Code  Civ.  Proc. 

20  Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  97  Pac.  Rep.  152. 


21  CONSTITUTIONAL,  ASPECTS— LAW  APPLICABLE.  §§29-31 

tractor,  is  not  in  violation  of  the  constitutional  provision 
recognizing  the  rights  of  mechanics  and  others  to  liens.21 
Additional  matter  to  foot-note  16.22 

§  30.    Raising  the  question  of  constitutionality. 

Additional  matter  to  foot-note  18. 23 
Additional  matter  to  foot-note  19.24 

§  31.    Constitutionality  of  lien  statutes  generally. 
Additional  matter  to  foot-note  20.25 
Additional  matter  to  foot-note  21.26 


21  California.     C.  Scheerer  &  Co.  v.  Deming,  154  Cal.  138,  141,  97  Pac. 
Rep.   155. 

22  California.     D.    I.    Nofziger    L.    Co.    v.    Solomon,    13    Cal.    App.    621, 
110  Pac.  Rep.  474,  475. 

23  California.     C.  Scheerer  &  Co.  v.  Deming,  154  Cal.  138,  142,  97  Pac. 
Rep.   155.     See  Davidson  v.  Von  Detten,   139  Cal.  467,  73  Pac.  Rep.  189. 

24  Idaho.     See  ex  parte  Gale,   14  Idaho,  761,   95  Pac.  Rep.  679. 

25  Montana.     Logging    lien.      Constitutionality    of    Sess.    Laws    1899, 
p.    126,    Rev.   Codes,    §§5819-5836:    See   Lane   v.    Lane-Potter   L.    Co.,    40 
Mont.,  541,  107  Pac.  Rep.   898. 

New  Mexico.  Mechanics'  lien  statute  constitutional  as  against  ob- 
jection that  it  is  unreasonable,  unjust,  inequitable  and  oppressive: 
Baldridge  v.  Morgan  (N.  M.,  January  6,  1910),  106  Pac.  Rep.  342,  344; 
Nash  v.  Morgan  (N.  M.,  January  6,  1910),  106  Pac.  Rep.  344;  Metz  v. 
Romero  (N.  M.,  January  6,  1910),  106  Pac.  Rep.  344. 

26  Bond  for  release  of  lien. 

Washington.  See  Kalb-Glibert  L.  Co.  v.  Cram,  57  Wash.  550,  107 
Pac.  Rep.  381  (bond  for  release  of  vessel);  provision  held  constitu- 
tional. 

Title  of  act. 

Oregon.  §  5668,  B.  &  C.  Comp.,  construction  of  "mining  claim"  in 
title;  held  constitutional:  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  Jan- 
uary 25,  1910),  106  Pac.  Rep.  452,  454. 

Washington.  Laws  1909,  c.  45,  requiring  material-men  to  deliver 
duplicate  statement  at  time  of  delivery  of  material;  held  constitu- 
tional: Finlay  v.  Tagholm  (Wash.,  November  22,  1910),  111  Pac.  Rep. 
782;  s.  c.,  113  Pac.  Rep.  1083;  Spokane  G.  &  T.  Co.  v.  Lyttaker  (Wash., 
June  16,  1910),  109  Pac.  Rep.  316. 

Power  to  employ  aliens. 

California.  Contract  or  statute  prohibiting  employment  of  aliens 
held  unconstitutional:  City  S.  I.  Co.  v.  Kroh,  158  Cal.  308,  110  Pac. 
Rep.  933,  941.  See  Chicago  v.  Hurlbert,  205  111.  363,  68  N.  E.  Rep.  786; 
People  v.  Warren,  34  N.  Y.  Supp.  943,  13  Misc.  Rep.  615;  Estate  of 
Ghio  (Cal.  Sup.),  108  Pac.  Rep.  516. 

Jurisdiction   of   the   person   and   proof  thereof. 

California.  Sufficient  affidavit  of  service  by  publication  and  consti- 
tutionality of  such  service  as  due  process  of  law:  See  Roberts  v. 
Jacob,  154  Cal.  307,  97  Pac.  Rep.  671.  See  Holt  Mfg.  Co.  v.  Collins, 
154  Cal.  265,  268,  97  Pac.  Rep.  516. 


31  MECHANICS'  LIENS— SUPPLEMENT.  22 

Additional  matter  to  foot-note  22.27 

Additional  matter  to  foot-note  24.28 

Additional  matter -to  foot-note  25.29 

Additional  matter  to  foot-notes  26,  27  and  28.30 

Additional  matter  to  foot-note  29.31 


New  Mexico.  Bmtentlnl  elementM  of  due  pi-ocean  of  law  in  action 
to  foreclose  mechanic's  lien:  Robertson  v.  Mine  &  S.  S.  Co.  (N.  M., 
August  29,  1910),  110  Pac.  Rep.  1037.  See  Simon  v.  Craft,  182  U.  S. 
427,  436,  21  Sup.  Ct.  Rep.  836,  45  L.  ed.  1165. 

Police    Power.     Hours    of    employment. 

Colorado.  Act  regulating  hours  of  employment,  held  unconstitu- 
tional: See  Burcher  v.  People,  41  Colo.  495,  93  Pac.  Rep.  14. 

Oklahoma.  Eight-hour  law,  employment  by  state,  county  or  mu- 
nicipality, Sess.  Laws  1908,  p.  517,  c.  53,  art.  4,  enacted  in  pursuance  of 
S  1,  art.  23,  constitution  (§  435  Bunn's  ed.),  held  constitutional:  Byers 
v.  State,  24  Okl.  Cr.  Ct.  App.  811,  102  Pac.  Rep.  804.  See  Atkin  v. 
State  of  Kansas,  191  U.  S.  207,  24  Sup.  Ct.  124,  48  L.  ed.  148;  Allgeyer 
v.  Louisiana,  165  U.  S.  578,  17  Sup.  Ct.  427,  41  L.  ed.  832;  Williams  v. 
Fears,  179  U.  S.  270,  21  Sup.  Ct.  128,  45  L.  ed.  186;  Ashby's  case,  60 
Kan.  101,  56  Pac.  Rep.  336,  338;  Ryan  v.  City  of  New  York,  177  N.  Y. 
271,  69  N.  E.  Rep.  599;  Clark  v.  State  of  New  Yor«c,  142  N.  Y.  101, 
36  N.  E.  Rep.  817.  See  Ex  parte  Donnellan,  49  Wash.  460,  95  Pac.  Rep. 
1085  (Sunday  law). 

— .     Public  aafety.     Powder. 

Kantian.  Law  relating  to  the  sale  and  delivery  of  powder  at  mines; 
held  constitutional:  Ex  parte  Williams,  79  'Kan.  212,  98  Pac.  Rep.  777. 

ConMtructlon  of  public  building",  law  relating  to;  held  constitu- 
tional: State  v.  Board  of  Comm'rs,  77  Kan.  527,  94  Pac.  Rep.  1004. 

27  See   §  41a  this   Supplement,  post. 

Municipal  ordinance*!  Reatrlctlng  building  permits  for  construc- 
tion of  stable,  held  unreasonable:  Coon  v.  Board  of  Public  Works, 
7  Cal.  App.  760,  95  Pac.  Rep.  913. 

Fire    limiiv.    ordinance    beld    not    retroactive;    repairing    building: 

Oregon.  Morton  v.  Wessinger  (Oreg.,  February  14,  1911),  113  Pac. 
Rep.  7.  See  Glenn  v.  City,  5  Gill  &  J.  (Md.),  424;  City  of  Buffalo  v. 
Chadeayne,  134  N.  Y.  163,  165,  31  N.  E.  Rep.  443. 

\Vanhlngton.  Laws  1893,  ch.  xxiv,  p.  32,  §1:  See  Tsutakawa  v. 
Kumamoto,  53  Wash.  231,  101  Pac.  Rep.  869,  102  Pac.  Rep.  766. 

Oklahoma.  Imponlng  license  tax  on  "contractor*  and  persons  doing 
contract  work,"  beyond  the  power  given  by  legislature  to  impose  tax 
on  "contractors"  merely:  Ex  parte  Unger,  22  Okl.,  755,  98  Pac.  Rep. 
999.  See  State  v.  McNally,  45  La.  Ann.  44.  12  South.  Rep.  117. 

**H*w  Mexico.  See  this  Supplement,  §33,  post.  Baldridge  v.  Mor- 
gan (N.  M.,  January  6,  1910),  106  Pac.  Rep.  342. 

29  California.     See   Los   Angeles   P.    B.    Co.    v.    Higgins,    8    Cal.    App. 
514.   518,   97   Pac.   Rep.    414,   420. 

30  California.     See  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621, 
110  Pac.  Rep.  474.  475. 

31  California.     See    Los    Angeles    P.    B.    Co.    v.    Higgins,    8    Cal.    App. 
514,   518,   519,  97  Pac.  Rep.   414,   420. 


23  CONSTITUTIONAL  ASPECTS — LAW  APPLICABLE.  S  33 

§  33.  Same.  Valid  contract.  In  a  number  of  states  the 
constitutionality  of  statutes  permitting  liens  in  excess  of  the 
contract  price  agreed  upon  between  the  owner  and  contractor 
has  been  upheld.32  But  in  California  it  is  said  that  the 
general  constitutional  principle  underlying  the  mechanic's 
lien  is  that  the  liability  of  the  owner  who  has  on  his  part 
complied  with  all  of  the  terms  of  a  valid  contract  is  limited 
to  the  price  which  by  his  contract  he  has  agreed  to  pay.33 

Abandonment.  Where  the  contractor  fails  to  perform  his 
undertaking  the  owner  is  made  liable  for  such  proportion  of 
the  contract  price  as  represents  the  value  of  the  work  already 
done.  When  he  is  without  any  default  on  his  part,  bur- 
dened with  the  cost  of  completing  the  building,  it  is  but  fair 
and  just  that  he  should  be  relieved  of  the  obligation  to  pay 
to  the  original  contractor  or  those  claiming  under  him  so 
much  of  the  contract  price  as  corresponds  to  the  portion  of 
the  work  left  undone.  In  no  other  way,  it  is  said,  can  he  be 
protected  in  his  constitutional  right  to  have  his  liability 
limited  to  the  amount  which  by  a  valid  contract  he  has 
agreed  to  pay.34 

32  Federal.     See  N.  M.  and  Ohio,  this  note,  post. 
Massachusetts.     Bowen  v.  Phinney,   162  Mass.  593,  39  N.  E.  Rep.  283, 

44  Am.  St.  Rep.  391. 

Minnesota.     Laird  v.  Moonan,  32  Minn.  358,  20  N.  "W.  Rep.  354. 

New  Mexico.  Baldridge  v.  Morgan  (N.  M.,  January  6,  1910),  106 
Pac.  Rep.  342;  Nash  v.  Morgan  (N.  M.,  January  6,  1910),  106  Pac.  Rep. 
344;  Metz  v.  Romero  (N.  M.,  January  6,  1910),  106  Pac.  Rep.  344.  See 
Springer  L.  Assoc.  v.  Ford,  168  U.  S.  513,  18  Sup.  Ct.  170,  42  L.  ed.  562. 

Ohio.  Great  Southern  F.  P.  Co.  v.  Jones,  193  U.  S.  532,  29  Sup.  Ct. 
576,  48  L.  ed.  778;  s.  c.,  86  Fed.  Rep.  370,  30  C.  C.  A.  108.  See  Bald- 
ridge  v.  Morgan  (N.  M.,  January  6,  1910),  106  Pac.  Rep.  342. 

Oklahoma.  See  Christy  v.  Union  O.  &  G.  Co.  (Okl.,  March  21,  1911), 
114  Pac.  Rep.  740;  Shirley  v.  Union  O.  &  G.  Co.  (Okl.,  March  21,  1911), 
114  Pac.  Rep.  742. 

Tennessee.      Cole  Mfg.  Co.  v.  Falls,  90  Tenn.  466,  16  S.  W.  Rep.   1045. 

Wisconsin.  Mallory  v.  La  Crosse  A.  Co.,  80  Wis.  170,  49  N.  W.  Rep. 
1071. 

33  California.      Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  116,  97  Pac. 
Rep.    152,    citing    Kellogg    v.    Howes,    81    Cal.    179;    Stimson    M.    Co.    v. 
Braun,   136  Cal.   122,  68  Pac.   Rep.   481,   89   Am.   St.   Rep.    116;   Latson  v. 
Nelson,  11  Pac.  Coast  L.  J.  589. 

34  California.     Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  116,  97  Pac. 
Rep.    152.     See    Steiger   T.    C.    &   Pv  Works   v.    City    of   Sonoma,    9    Cal. 
App.  698,  704,  100  Pac.  Rep.  714. 

These  decisions  had  reference  to  the  law  before  the  Amendments 
of  1911. 


§§  33-36  MECHANICS'  LIENS — SUPPLEMENT.  24 

Interest.    The  allowance  of  interest  to  the  lien  claimant, 
however,  is  held  not  to  render  the  statute  unconstitutional.35 
Additional  matter  'to  foot-note  31.36 

§  34.    Same.    Power  of  reputed  owner.    Estoppel. 
Additional  matter  to  foot-notes  38  and  40.37 

§35.     "Impairing  obligation  of  contract."38 

§  36.  Retroactive  laws.  Where  all  the  proceedings  in  an 
action  are  had  prior  to  the  enactment  of  an  amendment  to 
a  section  of  the  statute,  it  can  have  no  effect  on  the  validity 
or  invalidity  of  a  lien.39 

Additional  matter  to  foot-notes  46,  47  and  48.40 

35  California.  Burnett  v.  Glas,  154  Cal.  249,  260,  97  Pac.  Rep.  423; 
8.  c.,  sub.  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.  856. 

86  New  Mexico,  f  f  2216  et  »eq.  Coinp.  I. HUM  1897  are  not  unconsti- 
tutional because  they  permit  liens  In  excess  of  the  contract  price  of 
the  building  or  other  Improvement  on  the  ground  that  the  statute  is 
a  restraint  of  the  liberty  of  contract  or  the  taking  of  property  without 
due  process  of  law:  Baldridge  v.  Morgan  (N.  M.,  January  6,  1910), 
106  Pac.  Rep.  342;  Nash  v.  Morgan  (N.  M.,  January  6,  1910),  106  Pac. 
Rep.  344;  Metz  v.  Romero  (N.  M.,  January  6,  1910),  106  Pac.  Rep.  344. 

Oklahoma.  See  contra  to  text  Church  v.  Union  O.  &  G.  Co.  (Okl., 
March  21,  1911),  114  Pac.  Rep.  740;  bhirley  v.  Union  O.  &  Q.  Co.  (Okl., 
March  21,  1911),  114  Pac.  Rep.  742. 

37  California.  See  Holt  Mfg.  Co.  v.  Collins,  154  Cal.  265,  268,  97 
Pac.  Rep.  516. 

KIIIIMUM.  See  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac. 
Rep.  179,  180  (Improvement  of  wife's  property  by  husband),  explain- 
ing Bethell  v.  Lumber  Co.,  39  Kan.  230,  17  Pac.  Rep.  813. 

ss  See  notes,  §§  33  et  seq.,  ante. 

Washington.  See  Strand  v.  Griffith  (Wash.,  May  10,  1911),  115  Pac. 
Rep.  512  (new  statute  delaying  sale  upon  foreclosure  of  mortgage, 
unconstitutional,  if  applied  to  existing  contracts;  but  change  as  to 
posting  notices  of  sale,  affecting  only  remedy,  constitutional). 

so  California.  D.  I.  Nofziger  L.  Co.  v.  Waters,  10  Cal.  App.  89,  91, 
101  Pac.  Rep.  38  (with  reference  to  §  1203a  Code  Civ.  Proc.,  relating  to 
mistakes,  etc.). 

40  Knnnnn.  Same  principle,  see  Fossett  v.  Rock-Island  L.  &  Mfg.  Co., 
76  Kan.  428,  92  Pac.  Rep.  833,  835;  Nixon  v.  Cydon  Lodge,  56  Kan.  298, 
43  Pac.  Rep.  236;  Groesbeck  v.  Barger,  1  'Kan.  App.  61,  41  Pac.  Rep. 
402;  Hotel  Co.  v.  Hardware  Co.,  56  Kan.  448,  43  Pac.  Rep.  769. 

Washington.  See  otrand  v.  Griffith  (Wash.,  May  10,  1911),  115  Pac. 
Rep.  512  (change  in  manner  of  posting  notice). 


25  CONSTITUTIONAL  ASPECTS — LAW  APPLICABLE.    8  ?.  37.49 

§  37.    Homestead.    Priorities. 

Additional  matter  to  foot-notes  54  and  55.41 

§38.    Repeals.      • 

Additional  matter  to  foot-note  57. 42 

§  39.     Contractor's  bond. 
Additional  matter  to  foot-note  59.43 

§  40.    Attorney's  fees. 

Additional  matter  to  foot-note  62. 44 

Additional  matter  to  foot-note  63. 43 


41  Texas.     Under  the  constitution,  mechanic's  lien  held  prior  to  home- 
stead, under  certain  circumstances:    See  Summerville  v.  King,  98  Tex. 
332,  338,   83  S.  W.  Rep.   680. 

Utah.  See  Volver-Scowcroft  L.  Co.  v.  Vance  (Utah,  August  26, 
1909),  103  Pac.  Rep.  970,  affirming  s.  c.  32  Utah  74,  88  Pac.  Rep.  896; 
holding  that  the  homestead  is  not  subject  to  a  mechanic's  lien  in 
the  absence  of  an  express  contract,  and  recognizing  the  general 
proposition  of  the  text. 

Washington.  Olson  v.  Gqodsell,  56  Wash.  251,  105  Pac.  Rep.  463. 
See  Hookway  v.  Thompson  (Wash.),  105  Pac.  Rep.  153  (mortgage). 

42  Michigan.     See  Hanes  v.  Wadey,  73  Mich,  178,  41  N.  W.  Rep.   222, 
2   L.  R.  A.    498. 

i:\VasliiiiKton.  Act  1893,  ch.  xxiv,  p.  32:  See,  explaining  cases 
cited  in  Treatise,  and  construction  of  ch.  116,  p.  229,  Laws  1905, 
amending  said  act,  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  101  Pac. 
Rep.  869,  102  Pac.  Rep.  766. 

44  Alaska.    "Attorney's   fees   allowable:      See    Pioneer   M.    Co.   v.    Del- 
amotte   (C.  C.  A.),  185  Fed.  Rep.   752,  756    (syllabus  misleading). 

Federal.  See  Cascaden  v.  Wimbich,  161  Fed.  Rep.  241,  88  C.  C.  A. 
277;  Iowa  L.  L  Co.  v.  Lewis,  187  U.  S.  335,  23  Sup.  Ct.  126,  47  L.  ed.  204; 
Fidelity  L.  I.  Assoc.  Co.  v.  Mettler,  185  U.  S.  308,  22  Sup.  Ct.  662, 
46  L.  ed.  922. 

Montana.     See  this  section,   following  note. 

New  Mexico.  Gray  v.  New  Mexico  P.  S.  Co.,  110  Pac.  Rep.  603,  605. 
See  Baldridge  v.  Morgan  (N.  M.),  106  Pac.  Rep.  342;  Cascaden  v.  Wim- 
bich, 161  Fed.  Rep.  241,  88  C.  C.  A.  277. 

45  Attorney's   fees    unconstitutional : 

Alabama.  See  Southern  &  N.  A.  Ry.  Co.  v.  Morris,  65  Ala.  193; 
Randolph  v.  Builders',  etc.,  S.  Co.,  106  Ala.  501,  17  South.  Rep.  721. 

California.  Burnett  v.  Glas,  154  Cal.  249,  260,  97  Pac.  Rep.  423; 
s.  c.,  sub.  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac.  Rep. 
856,  111  Pac.  Rep.  760;  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  375, 
92  Pac.  Rep.  844;  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266,  274,  96  Pac.  Rep.  788;  Builders'  S.  Depot  v.  O'Connor,  150  Cal.  265, 
88  Pac.  Rep.  983,  119  Am.  St.  Rep.  193,  17  L.  R.  A.  (N.  S.),  909.  See, 
also,  Stimson  M.  Co.  v.  Nolan,  5  Cal.  App.  754,  91  Pac.  Rep.  262;  Hill 
V.  Clark,  7  Cal.  App.  609,  95  Pac.  Rep.  382;  Los  Angeles  P.  B.  Co.  v. 


8  41  MECHANICS'  LIENS — SUPPLEMENT.  26 

§  41.  Jurisdiction.  Special  case.  But  where  the  com- 
plaint fails  to  state  a  cause  of  action  for  the  foreclosure  of 
the  lien,  the  California  Superior  Court  has  no  jurisdiction 
to  entertain  a  cause  of  action  for  a  money  judgment  or  for 
services  rendered  of  a  value  less  than  three  hundred  dol- 
lars.46 


Hlggins,  8  Cal.  App.  514,  97  Pac.  Rep.  414,  420;  Johnson  v.  Goodyear 
M.  Co.,  127  Cal.  4,  59  Pac.  Rep.  304,  78  Am.  St.  Rep.  17,  47  L.  R.  A.  338. 

But  see  Engebretson  v.  Gay,  158  Cal.  30,  109  Pac.  Rep.  880,  a.  c. 
158  Cal.  27,  109  Pac.  Rep.  879;  s.  c.,  sub.  nom.  Gay  v.  Engebretson,  158 
Cal.  21,  109  Pac.  Rep.  877  (attorney's  fee  on  foreclosure  of  street  as- 
sessment lien,  held  constitutional;  and  see  authorities  therein  cited, 
and  distinctions  made). 

Colorado.  See  Denver  &  R.  G.  R.  Co.  v.  Outcault,  2  Colo.  App.  395, 
31  Pac.  Rep.  177. 

Federal.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis,  165  U.  S.  150,  17  Sup.  Ct. 
225,  41  L.  ed.  666.  See  Greene  v.  Brigga,  1  Curtis  (U.  S.),  327  Fed. 
Cas.  No.  5764. 

Georgia.     Phoenix  I.  Co.  v.  Hart,  112  Ga.  765,  38  S.  E.  Rep.   67. 

Idaho.  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho,  5, 
93  Pac.  Rep.  789,  799,  92  Pac.  Rep.  980. 

Illinois.  See  Braceville  C.  Co.  v.  People,  147  111.  66,  35  N.  E.  Rep. 
62,  37  Am.  St.  Rep.  206,  22  L.  R.  A.  340;  Millett  v.  People,  117  111.  294, 
7  N.  E.  Rep.  631,  57  Am.  Rep.  869;  Peoria  &  E.  Ry.  Co.  v.  Duggan, 
109  111.  537,  50  Am.  Rep.  619. 

Kentucky.  See  Gordon  v.  Winchester  Assoc.,  12  Bush  (Ky.),  110, 
23  Am.  Rep.  713. 

Michigan.  See  Grand  Rapids  C.  Co.  v.  Remells,  77  Mich,  104,  43  N. 
W.  Rep.  1006;  Wilder  v.  C.  &  W.  Mich.  Ry.  Co.,  70  Mich.  382,  38  N.  W. 
Rep.  289. 

Mississippi.     See  Chicago,  St.  L.  &  M.  Ry.  Co.  v.  Moss,  60  Miss.   641. 

MlMsourl.  See  Paddock  v.  Missouri  Pac.  Ry.  Co.,  155  Mo.  524,  56  S. 
W.  Rep.  453;  West  v.  Wabash  R.  Co.,  118  Mo.  App.  432,  94  S.  W. 
Rep.  310. 

Montana.  Mills  v.  Olson  (Mont.,  March  29,  1911),  115  Pac.  Rep. 
33,  36  (under  Rev.  St.,  §  7166),  overruling  Wortman  v.  Kleinschmidt, 
12  Mont.  316,  30  Pac.  Rep.  280. 

Nebraska.  See  Atchison  &  Neb.  R.  Co.  v.  Boty,  6  Neb.  37,  29  Am. 
Rep.  356a. 

Ohio.  See  Hocking  Valley  C.  Co.  v.  Rosser,  53  Ohio  St.  12,  41  N.  E. 
Rep.  263,  29  L.  R.  A.  386. 

Oklahoma.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Mashore,  21  Okl.  275, 
96  Pac.  Rep.  630,  633  (under  §  1,  c.  87,  par.  6915,  Wilson's  Rev.  &  Ann. 
St.  Okl.,  1903). 

Texas.  See  Antonia  &  A.  P.  Ry.  v.  Wilson  (Tex.  App.),  19  S.  W. 
Rep.  910. 

Utah.  See  Openshaw  v.  Halfln,  24  Utah  426,  68  Pac.  Rep.  138,  91 
Am.  St.  Rep.  796. 

Wisconsin.     See  Durkee  v.  Janesville,   28  Wis.   464,   9  Am.   Rep.   500. 

46  California.  Davis  v.  Treacy,  8  Cal.  App.  395,  97  Pac.  Rep.  78 
(hearing  in  Supreme  Court  denied). 

See  this  Supplement,  §§  653  et  seq.,  post. 


27  CONSTITUTIONAL  ASPECTS — LAW  APPLICABLE. 

§  41a.  Municipal  control  over  building.  The  construction 
of  improvements  upon  private  property  within  a  city  is  not 
a  municipal  affair,  within  the  meaning  of  the  constitution; 
and  the  city  has  no  interest  therein  or  control  thereof,  ex- 
cept such  control  as  may  be  necessary  for  the  protection  of 
the  public  welfare,  under  the  police  power  delegated  by  the 
constitution  to  chartered  cities.  Such  police  power,  how-v 
ever,  is  expressly  made  subordinate  to  the  general  law.  And, 
so,  the  matter  of  the  size  and  character  of  buildings  con- 
structed or  to  be  constructed  within  the  limits  of  a  chartered 
city  and  of  regulations  relating  thereto  are  not  municipal 
affairs.47 


Equity  casej  appeal  direct  to  Supreme  Court:  Stockton  L.  Co.  V. 
Schuler,  7  Cal.  App.  257,  94  Pac.  Rep.  399. 

47  California.     May  v.  Craig,   13  Cal.  App.  368,  109  Pac.  Rep.  842. 

See  Ordinances,  §  31,  foot-note  21,  Treatise,  and  notes  to  §  31,  this 
Supplement,  ante. 


§§42-44  MECHANICS'  LIENS— SUPPLEMENT.  28 

CHAPTER  III. 

PERSONS  ENTITLED.     IN  GENERAL. 

§  42.    Constitutional  and  legislative  classifications.1 

§  43.    Classification  as  to  relation  to  owner  or  employer.2 
Additional  matter  to  foot-note  8.3 
Additional  matter  to  foot-note  9.4 

§  44.     Same.     As  to  individuality  of  claimants.5 
Additional  matter  to  foot-note  10.6 
Additional  matter  to  foot-note  II.7 
Additional  matter  to  foot-note  12.8 

1  See  notes  to  §§  28  et  seq.,  this  Supplement,  ante. 

2  See  notes  to  §§  572  et  seq.,  this  Supplement,  post. 

8  Strike  out  note  "In  interpreting  mechanic's-lien  law."  etc. 

4  See  "Privity,"  |J  49  and  695,  and  "Agency,"  |§  572  et  seq.,  Treatise 
and  this  Supplement. 

Oregon.  See  Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg. 
71,  100  Pac.  Rep.  1,  102  Pac.  Rep.  303;  Smith  v.  Wilcox,  44  Oreg.,  323, 
74  Pac.  Rep.  708,  75  Pac.  Rep.  710. 

5  Washington.     Definition  of  "claimants,"  found  in  decree,  see  North 
Coast  Ry.  Co.  v.  Hess,  56  Wash.  335,  105  Pac.  Rep.  853,  855. 

Claim  of  lien  of  guardian:  See  Smythe  v.  Lance,  52  Wash.  560, 
100  Pac.  Rep.  995. 

6  Arlzonn.     Suit  by  auMlgnee  of  claim:     See  Harper  v.  Independence 
D.  Co.    (Ariz.,  April   2,   1910),   108  Pac.  Rep.   701,   703. 

7  Partnership: 

California.  See  Lucas  v.  Gobbi,  10  Cal.  App.  648,  653,  103  Pac. 
Rep.  157. 

Idaho.  See  Naylor  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  789, 
96  Pac.  Rep.  573,  s.  c.,  95  Pac.  Rep.  827. 

Montana.  Action  by  partnership,  doing  business  under  a  fictitious 
name,  for  work  and  material:  See  Wilson  v.  Yeger  Bros.,  38  Mont. 
504,  100  Pac.  Rep.  613. 

Washington.  Malfa  v.  Crisp,  52  Wash.  509,  100  Pac.  Rep.  1012  (do- 
ing business  in  fictitious  name — filing  certificate — pleading). 

8  Corporation: 

California.  Coghlan  v.  Quarataro  (Cal.  App.,  March  21,  1911),  115 
Pac.  Rep.  664,  667  (hearing  by  Supreme  Court  denied). 

Idaho.  Foreign  corporation:  See  Valley  L.  Co.  v.  Driessel,  13 
Idaho  662,  93  Pac.  Rep.  765,  770  (failure  to  file  articles  of  incorpora- 
tion— cases  reviewed). 

Kansas.  Compare  Shores  v.  United  S.  Co.  (Kan.  April  8,  1911),  114 
Pac.  Rep.  1062. 

New  Mexico.  Foreign  corporation  as  claimant:  See  Stearns-Roger 
Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14  N.  M.  300,  93  Pac.  Rep.  706. 

Washington.  See  Pacific  I.  &  S.  Works  v.  Goerig,  55  Wash.  149 
104  Pac.  Rep.  151. 


29  ORIGINAL  CONTRACTORS.  §§45    46 


CHAPTER  IV. 
ORIGINAL  CONTRACTORS. 

§  45.    Definition  of  "original  contractor."  * 
Additional  matter  to  foot-note  I.2 

§  46.  Same.  One  test.  Intermediate  liens.  There  is 
nothing  in  the  spirit  or  letter  of  the  mechanics'  lien  law 
which  indicates  that  the  subclaimants '  liens  can  be  affected 
by  the  obligations  which  exist  between  the  contractor  and. 
subcontractor.3 

Additional  matter  to  foot-note  6.4 


1  Idaho.     See  New  Mexico,  this  note,  post. 

Louisiana.     See  State  v.  McNally,  45  La.  Ann.  44,  12  South.  Rep.  117. 

New  Mexico.  There  has  been  much  diversity  of  opinion  and  con- 
fusion as  to  the  meaning  of  the  words  "original  contractor"  in  a 
statute  like  the  New  Mexico  statute  (§2221,  Comp.  L.),  but  we 
think  that  the  Idaho  court,  under  a  statute  identical  in  terms  with 
ours,  has  announced  the  true  rule,  namely,  that  every  person  who 
deals  directly  with  the  owner  of  the  property  and  who  in  pursuance 
of  a  contract  with  him  performs  labor  or  furnishes  material  is  an 
original  contractor  within  the  meaning  of  the  statute  (Colorado  I. 
Works  v.  Rieckenberg,  4  Idaho  262,  38  P*ac.  Rep.  651).  The  same 
holding  prevails  in  Texas,  Missouri,  Virginia  and  Wisconsin,  and  the 
cases  from  those  states  are  cited  in  the  Idaho  opinion:  Gray  v. 
New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep.  603,  605.  (This  definition 
would  hardly  cover  all  of  the  questions  that  might  arise  under  the 
statute,  as  shown  in  the  text  of  the  Treatise.) 

Montana.  Independent  Contractor,  under  logging  lien  law:  See 
Lane  v.  Lane  Potter  L.  Co.,  40  Mont.  541,  107  Pac.  Rep.  898. 

Oklahoma.     See  Ex  parte  Unger,  22  Okl.  755,  98  Pac.  Rep.  999. 

Pennsylvania.  See  Brown  v.  German-American  T.  &  T.  Co.,  174 
Pa.  443,  34  Atl.  Rep.  335. 

2  Washington.      The    contractor    has    a    lien    for    the    contract    price, 
irrespective   of   the   fact  that   he   performed   no   service   further   than 
overseeing  the  construction  of  the  building,  according  to  his  contract: 
Smythe  v.  Lance,  52  Wash.  560,  100  Pac.  Rep.  995. 

3  California.     Los  Angeles  P.   B.   Co.   v.  Los  Angeles  P.   B.   &  D.   Co., 
7    Cal.    App.    460,    462,    94    Pac.    Rep.    775.      See    Parnham    v.    California 
S.  D.  &  T.  Co.,  8  Cal.  App.   266,   271,   96  Pac.  Rep.   788. 

See  §  54  this  Supplement,  post. 

4  California.      Steiger   T.    C.    &   P.   Works  v.    City    of   Sonoma,    9    Cal. 
App.    698,    100    Pac.    Rep.    714    (tiling    for    roof   and   placing    same    in 
position). 


§§47-54  MECHANICS'  LIENS— SUPPLEMENT.  3Q 

§  47.     Same.     Four  essential  factors.-"' 

§  48.     Same.     Two  or  more  original  contractors/5 

§  49.     First  test.     Privity.7 
Additional  matter  to  foot-note  10.8 

§  50.  Same.  Holder  of  legal  title.9 

§  51.  Same.  Tenant.10 

§52.  Same.  Void  contract.11 

§  53.  Same.  Implied  original  contract.12 

§  54.     Second  test.     Intermediate  lienholders. 
Additional  matter  to  foot-note  19. 13 


•••  See  this  Supplement,  |i  49  et  seq.,  post. 

e  California.  See  Seebach  v.  Kuhn,  9  Cal.  App.  485,  486,  99  Pac. 
Rep.  723. 

Oklahoma.  See  Albertl  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  548. 
See  §  59,  Treatise. 

7  Definition    of   privy i     Holt    MIX-.    Co.    v.    Collins,    154    Cal.    265,    273; 
Orthwein  v.  Thomas,  127  111.  554,   21  N.  E.  Rep.   430,   11  -Am.  St.  Rep. 
159;  and  see  Llpcomb  v.  Postell,  38  Miss.  476,  77  Am.  Dec.  651. 

8  Oregon.     See  Equitable  S.  &  L.   Assoc.  v.   Hewitt   (Oreg.),   106  Pac. - 
Rep.  447,  450. 

As  to  whether  party  original  contractor  or  subcontractor:  See 
Coffey  v.  Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079;  s.  c.,  52  Oreg.  545, 
97  Pac.  Rep.  1081;  s.  c.,  52  Oreg.  546,  97  Pac.  Rep.  1082. 

Privity: 

Idaho.  See  Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93 
Pac.  Rep.  24,  27. 

\\HxlilnKton.  See  Erickson  v.  Hochbrune,  47  Wash.  33,  91  Pac. 
Rep.  485. 

•  See  S  67  Treatise. 

10  See  §|  464,  467,  477,  this  Supplement,  post. 

11  See  I   67   Treatise.     Statutory   original    contract   abolished    (Stats. 
&  Amdts.  1911,  pp.  1313  et  seq.). 

Colorado.  Nor  when  the  statutory  original  contract  is  not  filed: 
Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

12  California.    Statutory  original  contract  abolished  (Stats.  &  Amdts. 
1911,  pp.   1313  et  seq.). 

is  See  846  this  Supplement,  ante. 

California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
271,  96  Pac.  Rep.  788. 

YVaahlngrton.  See  Pennsylvania  C.  Co.  v.  Washington  P.  C.  Co., 
(Wash.  June  27,  1911),  116  Pac.  Rep.  284. 


31  ORIGINAL  CONTRACTORS.  SS  55.59 

§  55.    Same.    Agency. 

Additional  matter  to  foot-note  20. 14 

§  56.    Same.    Direct  contract  with  owner.15 

§  57.    Same.    Material-man. 
Additional  matter  to  foot-note  25. 16 

§  58.    Third  test.    Personal  liability.17 

§  59.     Fourth  test.     Labor  contract.18 

Additional  matter  to  foot-note  28. 19 


14  California.  See  Loma  Prieta  L.  Co.  v.  Hinton,  12  Cal.  App.  766, 
108  Pac.  Rep.  766,  108  Pac.  Rep.  528. 

Idaho.  Valley  L.  Mfg.  Co.  v.  Nlckerson,  13  Idaho  682,  93  Pac. 
Rep.  24,  27. 

Oregon.  See  Equrtable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac. 
Rep.  447,  450;  Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.  54  Oreg. 
71,  100  Pac.  Rep.  1,  102  Pac.  Rep.  303;  Smith  v.  Wilcox,  44  Oreg.  323, 
74  Pac.  Rep.  708,  75  Pac.  Rep.  710. 

Washington.  See  Pennsylvania  C.  Co.  v.  Washington  P.  C.  Co. 
(Wash.,  June  27,  1911),  116  Pac.  Rep.  284. 

is  See  §§77  et  seq.,  post. 

16  California.      See    Steiger    T.    C.    &    P.    Works    v.    City    of    Sonoma, 
9  Cal.  App.  698,  100  Pac.  Rep.  714. 

17  Compare   distinction,   servant   and    independent   contractor,   in   the 
law  of  negligence: 

California.  Gay  v.  Engebretson,  158  Cal.  21,  109  Pac.  Rep.  877; 
s.  c.,  sub.  nom.  Engebretson  v.  Gay,  158  Cal.  27,  30,  109  Pac.  Rep.  879, 
880;  Pearson  v.  M.  M.  Potter  Co.,  10  Cal.  App.  245,  101  Pac.  Rep.  681, 
and  cases  cited. 

Kansas.  See  Nelson  v:  American  C.  P.  Co.  (Kan.,  May  6,  1911), 
115  Pac.  Rep.  578. 

Montana.  See  Poor  v.  Madison  R.  P.  Co.,  38  Mont.  341,  99  Pac. 
Rep.  947;  Jensen  v.  Barbour,  15  Mont.  582,  39  Pac.  Rep.  906. 

Independent   contractor: 

Kansas.     See  Chute  v.  Moeser,  77  Kan.   706,  95  Pac.  Rep.  398. 

Utah.     See  Morris  v.  Salt  Lake  City,  25  Utah  474,  101  Pac.  Rep.  373. 

is  Washington.  See  Gary  v.  Sparkman  &  McLean  Co.  (Wash., 
March  8,  1911),  113  Pac.  Rep.  1093. 

19  Oklahoma.  "Persons  doing  contract  work":  See  Ex  parte  Unger, 
22  Okl.  755,  98  Pac.  Rep.  999.  See  State  v.  McNally,  45  La.  Ann. 
44,  12  South.  Rep.  117. 

See  §  48  Treatise. 

Washington.  It  is  not  necessary  that  the  -original  contractor  should 
personally  perform  labor  on  the  structure  to  have  a  lien:  Smythe  v. 
Lance,  52  Wash.  560,  100  Pac.  Rep.  995. 


|§  60-62  MECHANICS'  LIENS — SUPPLEMENT.  32 

§  60.    Distinction  between  ' '  original  contractor ' '  and  ' '  ma- 
terial-man." 
Additional  matter  to  foot-note  33.20 

§  61.  General  rights  of  original  contractors.  As  against 
person  who  "caused"  improvement  to  be  made. 

Notice  to  withhold.  Under  the  statute  of  California, 
section  eleven  hundred  and  eighty-three  of  the  Code  of  Civil 
Procedure,  before  amendment  of  1911,  the  original  contractor 
was,  of  course,  not  entitled  to  serve  notice  on  the  owner  to 
withhold  payment.21 

Under  valid  contract.  As  the  statute  stood,  before  the 
amendment  of  1911,  in  California,  as  well  as  elsewhere,  in 
general,  the  original  contractor  could  recover  for  a  substan- 
tial performance  of  the  contract,  under  the  modern  equitable 
doctrine,  the  owner  being  protected  by  recoupment  for  de- 
ficiencies.22 

Additional  matter  to  foot-note  45.23 

Additional  matter  to  foot-note  46.24 

Additional  matter  to  foot-note  49. 25 

§  62.  Same.  As  against  other  persons  in  privity  with 
him.  The  statute  does  not  attempt  to  define  or  interfere 
with  the  contractual  relations  between  the  contractor  and 

20  California.     Stelger  T.  C.   &  P.  Works  v.  City  of  Sonoma,  9  Cal. 
App.  698,  100  Pac.  Rep.  714. 

21  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.   460,   462,  94  Pac.  Rep.  775. 

22  California.     Seebach  v.  Kuhn,  9  Cal.  App.  485,  488,  99  Pac.  Rep.  723. 
Utah.     Foulger  v.  McQrath,  34  Utah  86,  95  Pac.  Rep.  1004,  1006. 

See  doctrine  In  detail,  §§  341-345  Treatise  and  this  Supplement. 

-'3  California.  And  he  may  recover  a  personal  judgment.  If  the 
Hen  falls:  Los  Angeles  P.  B.  Co.  v.  Hlgglns,  8  Cal.  App.  514,  524,  526. 
97  Pac.  Rep.  414,  420. 

KmiMiiM.  Fossett  v.  Rock-Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac. 
Rep.  833,  838,  839. 

24  California.  Compare  Dahlberg  v.  Glrsch,  157  Cal.  324,  330,  107 
Pac.  Rep.  616. 

Washington.  Contractor  has  a  Hen  for  the  contract  price:  Smythe 
v.  Lance,  52  Wash.  560,  100  Pac.  Rep.  995. 

23  California.     See   L.   A.   P.   B.   Co.   v.   Hlgglns,   8   Cal.   App.   514.   524, 
97  Pac.  Rep.  414.  420. 


33  ORIGINAL  CONTRACTORS.  §§62-64 

his  subcontractor  until  the  subcontractor  has  brought  him- 
self within  the  provisions  of  the  mechanics'  lien  law.26 

Additional  matter  to  foot-note  52.27 

Additional  matter  to  foot-note  53. 28 

§  63.  Same.  As  against  other  persons.  Where  the  con- 
tractor enters  into  a  contract  with  a  third  person  for  work 
and  material,  and  not  for  the  purchase  of  material  merely,  in 
the  absence  of  an  express  agreement,  no  title  passes  from  the 
vendor  until  it  is  affixed  to  the  freehold,  so  far  as  the  con- 
tractor is  concerned.29 

§  64.     General  obligations  of  original  contractors. 
Additional  matter  to  foot-note  57. 30 
Additional  matter  to  foot-note  58. 31 
Additional  mattter  to  foot-note  60.32 


26  California.     Steiger  T.   C.   &  P.   Works   v.   City  of   Sonoma,   9   Cal. 
App.  698,  100  Pac.  Rep.  714   (said  with  reference  to  question  of  aban- 
donment). 

27  California.     Los  Angeles  P.   B.   Co.  v.  Los  Angeles  P.  B.   &  D.   Co., 
7  Cal.  App.  460,  463,  94  Pac.  Rep.  775. 

Oklahoma.  Vandenberg  v.  P.  T.  Walton  L.  Co.,  19  Okl.,  169,  92  Pac. 
Rep.  149,  150. 

28  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.   &  D.  Co., 
7  Cal.  App.  460,  463,  94  Pac.  Rep.  775. 

29  California.     Steiger  T.   C.   &  P.   Works  v.   City   of  Sonoma,   9   Cal. 
App.  698,  100  Pac.  Rep.  714. 

Louisiana.  See  Cameron  v.  Orleans  &  J.  Ry.  Co.,  108  La.  83,  32 
South.  Rep.  208;  Orleans  &  J.  Ry.  Co.  v.  International  Const.  Co.,  108 
La.  82,  32  South.  Rep.  18  (materials  for  street  railway). 

Wisconsin.  Chandler  v.  De  Graff,  22  Minn.  471  (railroad  ties  for 
railway). 

so  See  doctrine  in  detail,  §§  341-345,  Treatise  and  this  Supplement. 
And  see  §  61,  this  Supplement,  ante. 

California.     Seebach  v.  Kuhn,  9  Cal.  App.  485,  488,  99  Pac.  Rep.  723. 

Kansas.  See  Fossett  v.  Rock-Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92 
Pac.  Rep.  823,  838,  839. 

Oklahoma.  Vandenberg  v.  P.  T.  Walton  L.  Co.  19  Okl.  169,  92 
Pac.  Rep.  150. 

Oregon.  In  good  faith:  Edmunds  v.  Welling  (Oreg.),  110  Pac. 
Rep.  533,  534. 

Utah.     Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.  1004,  1006, 1007. 

31  Utah.      See   Foulger   v.   McGrath,    34    Utah    86,    95   Pac.    Rep.    1004, 
1006,  1007. 

See  Performance,  §  339  Treatise  and  this  Supplement. 

32  California.    See    Dahlberg    v.    Girsch,    157    Cal.    324,    330,    107    Pac. 
Rep.  616. 

Bloom's  Sup. — 3 


§§  64-65a          MECHANICS'  LIENS — SUPPLEMENT.  34 

Additional  matter  to  foot-note  61. 33 
Additional  matter  to  foot-note  63.34 

§  65.  Same.  To  'other  persons.35  The  subcontractor  or 
material-man  may  recover  a  personal  judgment  against  the 
contractor  for  labor  or  materials  furnished  to  him  at  his  re- 
quest.36 

Additional  matter  to  foot-note  65.37 

Additional  matter  to  foot-note  68.38 

§  65a.  Same.  Where  the  original  contractor  pays  to  the 
subcontractor  his  indebtedness  to  him,  after  the  stautory 
notice  to  withhold  payment  has  been  served  on  the  owner 

33  Oklahoma.     See  Vandenberg  v.   P.  T.   Walton   L.   Co.,   19   Okl.   169, 
92  Pac.  Rep.  149,   150. 

34  California.     Klokke  v.  Raphael,  8  Cal.  App.  1,  5,  96  Pac.  Rep.  392. 
K  n  us  JIM.     Wichita  S.   &  D.  Co.  v.  Weil,  80  Kan.   606,   103   Pac.  Rep. 

1003,    1004. 

Oklahoma.  It  la  not  the  contractor's  duty  to  defend  against  the 
liens  of  subclaimants  under  his  subclaimants;  but  It  Is  his  duty  to 
pay  the  moneys  due  under  the  original  contract  in  a  manner  to  pro- 
tect th«  building  and  owner  from  liens  caused  by  his  subclaimants' 
contracts,  after  a  decree  establishing  the  liens;  he  has  a  right  to 
insist  that  such  liens  shall  be  established  by  decree  of  court,  and 
payment  by  the  contractor  before  that  time  is  at  his  peril.  It  is  his 
duty  to  show  to  the  court  by  proper  pleading  and  proof  the  amount 
which  his  subcontractors  or  those  entitled  to  liens  under  them  are 
entitled  to  receive.  It  is  his  duty  and  that  of  those  claiming  liens 
under  him  to  protect  themselves  against  unlawful  claims.  Nothing 
here  said  is  to  indicate  that  the  original  contractor  is  not  bound  to 
protect  the  building  from  liens,  but  the  building  is  under  the  circum- 
stances liable  only  to  the  amount  of  the  contract  price:  Vandenberg 
v.  P.  T.  Walton  L.  Co..  19  Okl.  169,  92  Pac.  Rep.  149,  150. 

35  See  §  58,  this  Supplement,  independent  contractor. 

Utah.  Action  against  contractor  and  municipality  for  damages  to 
abutting  property  in  performance  of  contract:  See  Morris  v.  Salt 
Lake  City.  35  Utah  474,  101  Pac.  Rep.  373. 

3«  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
515,  97  Pac.  Rep.  414,  420. 

Colorado.  See  Estey  v.  Halleck  &  Howard  L.  Co.,  4  Colo.  App.  165, 
34  Pac.  Rep.  1114. 

Oklahoma.     Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  546. 

Washington.  Rasmussen  v.  Liming,  50  Wash.  184,  96  Pac.  Rep. 
1044. 

37  Oregon.      Contractor    under    no    obligation    to    pay   owner'*    claim- 
ants    See  Mclnnis  v.  Buchanon,  53  Oreg.  229,  99  Pac.  Rep.  929,  930. 

\VlHconnln.     See  Walker  v.  Newton,  53  Wis.  336,  10  N.  W.  Rep.   436. 

38  California.     Goldtree   v.   City   of  San   Diego,   8   Cal.   App.   505,    506, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

Oklahoma.     See  Alberti  v.  Moore,   20  Okl.   78,   93   Pac.   Rep.   543,   546. 


35  ORIGINAL  CONTRACTORS.  § 

by  such  subcontractor's  subclaimants  under  a  statutory 
original  contract,  even  if  the  contractor  is  not  notified  of  the 
claim  of  such  subclaimants,  it  does  not  affect  the  lien  on  the 
fund  in  the  hands  of  the  owner  nor  the  lien  upon  the  prop- 
erty, where  there  is  moneys  in  the  hands  of  the  owner  due 
to  the  original  contractor,  under  the  terms  of  the  original 
contract,  at  the  time  of  the  service  of  the  notice.39  The 
original  contractor  is  not  liable  to  the  subcontractor  when 
the  contract  between  them  embodies  the  original  contract 
by  proper  reference  and  when  under  the  terms  of  the  orig- 
inal contract  the  original  contractor  can  not  recover  from  the 
owner  by  reason  of  the  destruction  of  the  building.40 

§  65b.  Death  of  owner.  Presentation  of  claim.  When 
the  owner  dies  after  making  a  construction  contract,  the 
contractor  must  present  his  claim  to  the  personal  representa- 
tive within  the  time  required  by  law,  where  no  claim  of  lien 
has  been  filed  against  the  property  improved,  or  the  con- 
tractor has  no  claim  against  the  estate.41 

39  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.   B.  &  D.  Co., 
7  Cal.  App.  460,  94  Pac.  Rep.   775. 

40  California.     Watson  v.  Alta  I.  Co.,   12  Cal.  App.   560,  565,  108  Pac. 
Rep.    48;    Watson   v.    Alta   I.    Co.,    12    Cal.    App.    566,    108   Pac.    Rep.    50 
(hearing  in  Supreme  Court  denied). 

41  California.     In  re  Hincheon's  Estate    (Cal.  Sup.,  May   16,    1911;   on 
rehearing  in  bank  June  15,  1911),  116  Pac.  Rep.  47. 


§§  66-68  MECHANICS'  LIENS — SUPPLEMENT.  35 


CHAPTER  V. 
SUBCONTRACTORS. 

§  66.    Definition  of  ' '  subcontractor. ' '  * 

Subcontractor  not  required  to  perform  personal  labor. 
The  fact  that  the  subcontractor  himself  does  not  per-' 
form  personal  labor  upon  the  building,  but  does  the  work 
through  his  own  subcontractors,  employees  or  laborers,  does 
not  prevent  him  from  obtaining  a  lien,  which  will  cover  the 
liens  of  all  of  his  subclaimants.2 

Additional  matter  to  foot-note  I.3 

§  67.    Different  degrees  of  subcontractors. 
Additional  matter  to  foot-note  4.4 

8  68.    Distinction.     Subcontractor  and  material-man.5 


1  Washington.     The  term  subcontractor  has  a  well  defined  meaning: 
in   building  contracts.     A  subcontractor   Is   one   who   takes   from   the 
principal   contractor  a   specific  part  of  the  work   and  the  term  does 
not  include  laborers  or  material-men:  Young  Men's  C.  Assoc.  of  North 
Yakima  V.  Gibson,  58  Wash.  307,  108  Pac.  Rep.  766,  769.     See  Farmers' 
L.  &  T.  Co.  v.  Canada  &  St.  L.   Ry.  Co.,   127  Ind.   250,   26  N.  E.  Rep. 
784,  11  L.  R.  A.   740. 

2  California.    Barrett-Hicks  Co.   v.   Glas    (Cal.   App.),    Ill   Pac.   Rep. 
760,    765;    s.    c.,    9    Cal.    App.    491,    99    Pac.    Rep.    856;    s.    c.,    sub    nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Washington.  Smyth.-  v.  Lance,  52  Washington  560,  100  Pac.  Rep. 
995  (under  Ballinger's  Ann.  C.  &  S.,  S  5900 — Pierce's  Code,  S  6102). 
See  Powell  v.  Nolan,  27  Wash.  318,  341,  67  Pac.  Rep.  712,  720,  68  Pac. 
Rep.  389;  Blumauer  v.  Clock,  24  Wash.  596,  64  Pac.  Rep.  844,  85  Am. 
St.  Rep.  966. 

s  Colorado.  The  statute  designates  all  subclaimants  as  "subcon- 
tractors": Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

Oregon.  As  to  whether  party  is  original  contractor  or  subcon- 
tractor, see  Coffey  v.  Smith,  52  Oreg.  338,  97  Pac.  Rep.  1079,  s.  c.,  52 
Oreg.  545,  97  Pac.  Rep.  1081,  s.  c.,  52  Oreg.  546,  97  Pac.  Rep.  1082. 

4  Colorado.     And  the  same  rule  applies  where  the  statutory  original 
contract,  or  the  memorandum  thereof,  is  not  filed  as  required  by  the 
statute:     Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

5  California.     See  Steiger  T.   C.   &   P.   Works  v.   City   of   Sonoma,   9 
Cal.  App.  698,  100  Pac.  Rep.  714. 

The  statute  does  not  authorize  a  lien  In  favor  of  one  who  Is  a 
subcontractor  under  a  subcontractor  in  the  following  states: 


37  SUBCONTRACTORS.  §§68-70 

Additional  matter  to  foot-note  5.6 

§  69.  Same.  Subcontractor  and  employees  of  material- 
man.7 

§  69a.     Lessor  of  means  or  appliances  of  construction.    In 

the  absence  of  a  statute  expressly  authorizing  the  same,8 
where  a  person  simply  lets  to  the  original  contractor,  without 
reserving  any  control  over  the  same,  tools,  machinery  or  ap- 
pliances, or  means  of  bringing  into  existence  the  object  con- 
structed, such  as  horses  and  harness  furnished  to  the  con- 
tractor at  a  stipulated  price  per  month  per  horse,  the  con- 
tractor having  full  control  of  the  horses  during  the  time  of 
hiring,  and  paying  the  drivers  thereof,  such  person  does  not 
"bestow"  labor  upon  the  structure  and  is  not  a  subcon- 
tractor, and  occupies  no  contractual  position  whatever  re- 
specting the  work.9 

The  subcontractor  may  "bestow"  labor,  as  the  term  is  used 
in  the  statute,  through  his  servants  and  employees,  without 
personally  laboring  on  the  structure.10 

§  70.     General  rights  of  subcontractors.11 


Kansas.  Home  L.  &  S.  Co.  v.  School  Dist.  (Kan.,  May  6,  1911),  115 
Pac.  Rep.  590.  See  Nixon  v.  Cydon  Lodge,  56  Kan.  298,  43  Pac.  Rep. 
236. 

Oklahoma.  Vandenberg  v.  P.  T.  Walton  L.  Co.,  19  Okl.  169,  92  Pac. 
Rep.  149. 

Contractor's  material-man,  "subcontractor"  under  statute: 

Kansas.  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac. 
Rep.  80,  81. 

e  Washington.  See  Finlay  v.  Tagholm  (Wash.,  March  8,  1911),  113 
Pac.  Rep.  1083,  s.  c.,  Ill  Pac.  Rep.  782. 

7  See  "Material-men,"  §§77  et  seq.,  this  Supplement,  post. 

8  California.     See   §  1183   Code   Civ.   Proc.,   as   amended  May   1,   1911, 
Stats,  and  Amdts.  1911,  pp.   1313  et  seq. 

9  California.     Wood,  Curtis  &  Co.  v.  El  Dorado  L.  Co.,  153  Cal.  230, 
94  Pac.   Rep.   877,   explaining  cases   in    §  91,  foot-note   41   of  Treatise. 
See  Clark  v.  Brawn,  141  Cal.  93,  74  Pac.  Rep.  548. 

See  Material-man,  §§  89-91,  Treatise  and  this  Supplement. 

10  California.     Wood,  Curtis  &  Co.  v.  El  Dorado  L.  Co.,  153  Cal.  230, 
94  Pac.  Rep.  877;  Macomber  v.  Bigelow,  126  Cal.  9,  14,  58  Pac.  Rep.  312. 

See  §  138  Treatise  and  this  Supplement. 

11  Compare    Rights    of    Material-men,    §  101,    Treatise    and    this    Sup- 
plement, post. 


5  71  MECHANICS'  LIENS — SUPPLEMENT.  33 

§  71.  Same.  Valid  contract.  The  subcontractor  has  a 
lien  under  the  statute,12  and  his  subcontractors  and  material- 
men  in  various  degrees,  in  most  jurisdictons  considered,  have 
a  lien  not  dependent  upon  whether  the  material  or  services 
were  furnished  at  the  order  of  the  contractor;  but  the  right 
to  the  lien  depends  upon  performing  the  labor  or  furnishing 
the  materials  for  the  property,  at  the  instance  of  the  owner 
or  his  agent,  actual,  ostensible  or  statutory.13 

When  the  terms  and  conditions  of  the  original  contract  are 
made  part  of  the  subcontract  by  proper  reference,  the  sub- 
contractor is  bound  by  all  of  the  terms  of  the  original  con- 
tract;14 and  when  the  original  contractor  can  not  recover 
thereon  against  the  owner  by  reason  of  the  destruction  of 
the  building  before  completion,  the  subcontractor  can  not 
recover  against  the  contractor.15 

Additional  matter  to  foot-note  II.16 

Additional  matter  to  foot-note  12. 17 

12  California.  Coghlan  v.  Quarataro  (Cal.  App.,  March  21,  1911), 
115  Pac.  Rep.  664,  667. 

is  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  461,  94  Pac.  Rep.  775. 

14  Utah.     Midgley  v.  Campbell  B.  Co.   (Utah),  112  Pac.  Rep.  820. 

is  California.  Watson  v.  Alta  I.  Co.,  12  Cal.  App.  560,  565,  108  Pac. 
Rep.  48  (hearing  In  Supreme  Court  denied);  Watson  v.  Alta  I  Co.,  12 
Cal.  App.  566,  108  Pac.  Rep.  50. 

16  The  contract  price  !•  the  fond  from  which  the  subcontractors  are 
entitled  to  receive  their  pay,  if  they  have  perfected  their  liens: 

Kanaa*.  See  Town  Co.  v.  Morris,  39  'Kan.  377,  18  Pac.  Rep.  230; 
Clough  v.  McDonald,  18  Kan.  114,  118;  Shellabarger  v.  Thayer,  15  Kan. 
619;  Fossett  v.  Rock-Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep. 
833.  835. 

The  subcontractor  who  IIIIM  lost  his  lien  by  failure  to  give  the 
notice  or  to  file  his  statement  has  no  right  to  share  in  the  distribu- 
tion and  no  claim  against  the  property:  Fossett  v.  Rock-Island  L. 

6  Mfg.  Co.,  supra. 

IT  California.  See  {1183  Code  Civ.  Proc.,  as  amended  May  1,  1911, 
Stats.  &  Amdts.  1911,  pp.  1313  et  seq.:  "Nor  in  any  case,  where  the 
claimant  was  employed  by  a  contractor,  or  subcontractor,  shall  the 
lien  extend  to  any  labor  or  materials  not  embraced  within  or  cov- 
ered by  the  original  contract  between  the  contractor  and  the  owner, 
or  any  modification  thereof  made  by  or  with  the  consent  of  such 
owner,  and  of  which  such  contract,  or  modification  thereof  the  claim- 
ant shall  have  had  actual  notice  before  the  performance  of  such 
labor  or  the  furnishing  of  such  materials."  It  is  further  provided 
that  the  filing  of  such  contract  or  modification  in  the  office  of  the 
county  recorder  shall  be  equivalent  to  such  notice. 


39  SUBCONTRACTORS.  §§72-73a 

§  72.     Same.    Void  contract.18 

§  73.    Same.    Personal  rights. 

Additional  matter  to  foot-note  16. 19 

Additional  matter  to  foot-note  17. 20 

Additional  matter  to  foot-note  18. 21 

•-Additional  matter  to  foot-note  19. 22 

Additional  matter  to  foot-note  20.23 

§  73a.  Same.  Death  of  original  contractor.  Where  the 
original  contractor  dies  after  levy  of  execution  by  way  of 

is  California.  The  Statutory  Original  Contract  was  abolished  by 
Amendment  of  May  1,  1911,  to  §  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

See  §§  268,  269,  274,  281,  288  and  328,  this  Supplement,  post. 

19  Oklahoma.      And    the    subclaimant    does    not   waive    the    personal 
liability  of  the  contractor  who  contracts  with  him  by  reason  of  filing  a 
notice  of  lien:     Albert!  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 

20  California.    Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  506,  97 
Pac.  Rep.  216,  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

AH  between  the  contractor  and  his  subcontractors  there  may  be 
offsets,  counterclaims  and  defenses  as  to  which  the  owner  may  have 
no  knowledge  or  concern.  The  subcontractor  may  depend  upon  the 
personal  liability  of  the  contractor  and  claim  no  lien  as  against  the 
owner;  but  where  a  lien  is  claimed  and  sought  to  be  enforced  the 
owner  is,  of  course,  interested  in  the  extent  of  the  lien  to  be  estab- 
lished against  his  property: 

Kansas.     Wichita  S.    &  D.   Co.   v.   Weil,    80    Kan.   606,   103   Pac.   Rep. 

ioas,  1004. 

Oklahoma.     Albert!  v.  Moore,   20  Okl.   78,   93  Pac.  Rep.   543,   547. 

21  Montana.     So  far  as  the  lien  is  concerned,  the  contractor  ha's  no 
right   to   apply  payments  to  other  buildings  to  the   prejudice   of  the 
owner  of  the  building  on  account  of  which  the  owner  made  the  pay- 
ment to   the  subcontractor:     Mills  v.   Olsen    (Mont.,  March   29,   1911), 
115  Pac.  Rep.  33,  36. 

Oklahoma.  The  subcontractor  has  a  lien,  established  in  the  same 
mode  and  to  the  same  extent  as  the  original  contractor,  but  to  no 
greater  extent;  and  when  there  is  no  primary  obligation  to  the 
original  contractor,  there  is  none  to  his  subcontractor:  Christy  v. 
Union  O.  &  G.  Co.  (Okl.,  March  21,  1911),  114  Pac.  Rep.  740;  Shirley 
v.  Union  O.  &  G.  Co.  (Okl.,  March  21,  1911),  114  Pac.  Rep.  742. 

22  There  being  no  privity: 

Kansas.  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep. 
1003,  1004.  See  Fossett  v.  Rock-Island  L.  &  M.  Co.,  76  Kan.  428,  92 
Pac.  Rep.  833,  14  L.  R.  A.  (N.  S.),  918. 

Oklahoma.     Albert!  v.  Moore,   20  Okl.   78,   93  Pac.  Rep.   543,  547. 

23  California.     As  to  payment  of  subcontractor's  claimants  first  out 
of  proceeds:     See  Barrett-Hicks  Co.  v.  Glas   (Cal.  App.),  Ill  Pac.  Rep. 
760,  765;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub.  nom.  Burnett 
v.  Glas,  154  Cal.   249,  97  Pac.  Rep.   423. 


§§  73a-75         MECHANICS-  LIENS— SUPPLEMENT.  40 

garnishment  against  the  owner  on  behalf  of  his  claimants 
recovering  personal  judgments  against  the  contractor,  the 
failure  of  the  claimants  to  present  their  claims  to  the  admin- 
istrator of  the  estate  of  the  original  contractor  does  not  af- 
fect their  right  to  reduce  to  possession  the  debt  due  from 
the  owner  to  the  original  contractor.24 

§  74.  Same.  Amount  of  claim.  In  enforcing  liens  of  the 
various  claimants  and  subclaimants,  under  a  valid  contract, 
or  when  an  indirect  lien  is  given,  there  must  be  an  adjust- 
ment of  the  rights  of  the  respective  parties,25  and  the  prop- 
erty being  liable  only  for  the  value  of  the  work  done,  if  there 
be  not  sufficient  funds  to  pay  the  subcontractor  and  his  em- 
ployees, the  latter  must  be  first  paid,  and  the  loss,  if  any, 
must  be  borne  by  the  subcontractor.26 

Relations  between  contractor  and  subcontractor.  But  it 
has  been  said  that  there  was  nothing  in  the  letter  or  spirit  of 
the  California  lien  law,  as  it  existed  before  the  amendment 
of  1911,  to  indicate  that  the  laborers  and  material-men's  liens 
could  be  affected  by  the  obligations  which  existed  between 
the  contractor  and  his  subcontractor.27 

Additional  matter  to  foot-note  21. 28 

§  75.    Same.     Priorities.29 


24  California.     Nordstrom  v.  Corona  City  W.  Co.,   155  Cal.    206,   213, 
100  Pac.  Rep.  242. 

25  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.   460,  463,  94  Pac.  Rep.  775. 

Colorado.  Estey  v.  Halleck  &  Howard  L.  Co.,  4  Colo.  App.  165,  34 
Pac.  Rep.  1114. 

Oklahoma.     Albert!  v.  Moore,   20  Okl.  78,  93  Pac.  Rep.  543,  547. 

28  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  463,  94  Pac.  Rep.  775. 

Oklahoma.  The  subcontractor  is  entitled  to  recover  on  his  lien  an 
amount  sufficient  to  cover  what  is  due  to  his  subclaimants:  Albert! 
v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  643,  547. 

27  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  463,  94  Pac.  Rep.  775. 

28  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.   460,  463,  94  Pac.  Rep.  775. 

2»  See  "Priorities,"   §$486  et  seq.,  this  Supplement,  post. 


41  SUBCONTRACTORS.  s  75 

§  76.  General  obligations  of  subcontractors.  If  the  sub- 
contractor did  not  perform  his  contract  with  the  original 
contractor,  under  the  California  statute  as  it  existed  before 
the  amendment  of  1911,  the  subcontractor's  lien  might  have 
been  refused.30 

Additional  matter  to  foot-note  23. 31 

Additional  matter  to  foot-note  24.32 


so  California.     See   Los   Angeles   P.   B.   Co.   v.   Higgins,    8   Cal.    App. 
514,   517,   97  Pac.  Rep.   414,  420. 

31  Kansas.     Fossett  v.   Rock-Island   L.    &  Mfg.   Co.,   76   Kan.    428,   92 
Pac.  Rep.  833,  838,  14  L.  R.  A.   (N.  S.),  918. 

32  Kansas.      The    owner   may   recoup    damages   against   the    subcon- 
tractor  for   breach   of  the   contract,    without   regard   to   specific   pro- 
vision   for   damages    In    contract:      Wichita   S.    &   D.    Co.   v.    Weil,    80 
Kan.  606,  103  Pac.  Rep.   1003,  1005.     See  Fossett  v.  Rock-Island  L.  & 
M.   Co.,   76  Kan.   428,  92  Pac.  Rep.   833,  14  L.  R.  A.    (N.   S.),  918. 


§§  77-82  MECHANICS'  LIENS— SUPPLEMENT.       ^  42 


CHAPTER  VI. 

MATERIAL-MEN. 

§  77.  Distinction.  Material-man,  original  contractor,  and 
subcontractor.1 

§  78.    Definition  of  ' '  material-man. ' '  2 
Additional  matter  to  foot-note  I.3 

§  79.    Who  are  not  material-men.4 

§  80.     Same.    Placing  material  in  situ. 
Additional  matter  to  foot-note  II.5 

§  81.  Distinction  between  material-man  and  subcontrac- 
tor.6 

§  82.  Circumstances  under  which  lien  for  materials  is 
given.  The  contract.  Use  of  materials.7 

1  Kansas.      Contractor's    material-man,    "subcontractor"    under    the 
statute:     Chicago  L.   &  C.   Co.   v.  Washington,   80   Kan.   613,   103   Pac. 
Rep.   80,   81. 

\\  .-iNiiiimion.  One  furnishing  sashes,  doors  and  glass  for  a  building 
is  a  material-man  and  not  a  subcontractor;  otherwise,  every  material- 
man  would  fall  into  the  class  of  subcontractors,  and  such  construc- 
tion would  nullify  the  plain  terms  of  the  statute:  Findlay  v.  Tag- 
holm  (Wash.,  March  8,  1911),  113  Pac.  Rep.  1083;  s.  c.,  Ill  Pac.  Rep. 
782. 

2  See  Statutory  Agency,  §§  672  et  seq.,  Treatise  and  this  Supplement. 
Idaho.     See  Shaw  v.  Johnston-,  17  Idaho  676,   107  Pac.  Rep.  399. 

a  California.  See  Loma  Prieta  L.  Co.  v.  Hinton,  12  Cal.  App.  766, 
768,  108  Pac.  Rep.  528. 

Washington.  See  Gate  City  L.  Co.  v.  City  of  Montesano  (Novem- 
ber 25,  1910),  111  Pac.  Rep.  799. 

4  See  §§  60  and  68  this  Supplement,  ante. 

B  California.  But  see  Steiger  T.  C.  &  P.  Works  v.  City  of  Sonoma, 
9  Cal.  App.  698,  100  Pac.  Rep.  714,  where  the  person  furnishing  and 
placing  tiling  on  a  roof  was  held  a  subcontractor. 

e  California.  Compare  Steiger  T.  C.  &  P.  Works  v.  City  of  Sonoma, 
9  Cal.  App.  698,  100  Pac.  Rep.  714. 

7  The   contract  i 

California.  Contract  for  delivery  of  material  of  a  certain  amount 
per  month,  construed  calendar  month:  Fairchild-Gilmore-Wilton  Co. 
v.  Southern  R.  Co.  (Cal.),  110  Pac.  Rep.  951,  953. 


43  MATERIAL-MEN.  S  S  82    83 

Additional  matter  to  foot-note  16. 8 
Additional  matter  to  foot-note  17.9 
Additional  matter  to  foot-note  19. 10 

§  83.    Same.    Contract  for  sale,  or  for  labor.11 


8  Kansas.      The    contract    for   materials    need   not    describe    the    lots 
or  the  building,  and  the  material-man  need  not  know  the  exact  loca- 
tion   of   the    same:    Smith    v.    Chicago   L.    &    C.    Co.    (Kan.,   March    11, 
1911),   114   Pac.  Rep.   372,  373;   Wilson  v.   Howell,   48  Kan.    150,  152,   29 
Pac.  Rep.  151. 

Nor  need  the  material-man  know  the  precise  character  of  the  con- 
templated improvement;  it  is  enough  for  him  to  know  of  the  original 
contract  and  to  know  that  the  materials  are  to  go  to  the  betterment 
of  the  estate  of  the  owner  named:  Smith  v.  Chicago  L.  &  C.  Co., 
supra.' 

The  language  employed  in  Sturges  v.  Green,  27  Kan.  235,  and 
Wilson  v.  Howell,  48  Kan.  150,  152,  29  Pac.  Rep.  151,  means  that  the 
statute  is  satisfied  if  the  understanding  be  that  the  material  is  pur- 
chased for  an  improvement  for  a  particular  person  or  upon  a  par- 
ticular contract:  Smith  v.  Chicago  L.  &  C.  Co.,  supra. 

New  Mexico.  Contract  in  writing.  In  the  absence  of  an  express 
statutory  requirement,  the  contract  for  the  sale  of  material  need  not 
be  in  writing,  nor  if  in  writing  need  it  show  that  the  material  is  sold 
to  be  used  in  the  construction  of  the  particular  building  upon  which 
the  lien  is  sought  to  be  impressed.-  These  facts  may  be  shown  by 
parol  evidence,  if  it  does  not  dispute  or  alter  the  terms  of  any  written 
contract:  Stearns-Roger  Mfg.  Co.  v.  Aztec  M.  &  M.  Co.,  14  N.  M.  300, 
93  Pac.  Rep.  706,  710.  The  Statute  of  Frauds  must,  of  course,  be 
followed. 

9  Sold  to   be  used: 

California.  See  Lucas  v.  Gobbi,  10  Gal.  App.  648,  652,  103  Pac.  Rep. 
157. 

Colorado.  Evidence  of  delivery  and  use  held  sufficient:  See  Barnes 
v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo.  461,  94  Pac.  Rep. 
570,  573.  See  Rice  v.  Rhone  (Colo.,  May  2,  1910),  111  Pac.  Rep.  585. 

Idaho.  See  Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac. 
Rep.  24,  27. 

Kansas.  But  see  Smith  v.  Chicago  L.  &  C.  Co.  (Kan.,  March  11, 
1911),  114  Pac.  Rep.  372,  373,  374. 

New  Mexico.  See  contra,  Stearns-Roger  Mfg.  Co.  v.  Aztec  M. 
&  M.  Co.,  14  N.  M.  300,  93  Pac.  Rep.  706,  710. 

Washington.  Pacific  L.  &  T.  Co.  v.  Dailey  (Wash.,  November  22, 
1910),  111  Pac.  Rep.  869,  870. 

10  Sale   of  material   in   other   state: 

New  Mexico:  Stearns-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14 
N.  M.  300,  93  Pac.  Rep.  706,  709. 

Contra:  Burmingham  I.  Foundry  v.  Glenn  Cove  S.  Mfg.  Co.,  78 
N.  Y.  30,  under  a  more  restrictive  statute.  Strike  this  case  from  foot- 
note 19  in  Treatise. 

11  California.     See   Steiger   T.   C.   &   P.   Works   v.    City   of   Sonoma,   9 
Cal.  App.    698,   100   Pac.   Rep.   714. 


§§  84-88  MECHANICS1  LIENS— SUPPLEMENT.  44 

§  84.     Same.    Formalities.    Recording  contract.12 

§  85.    Same.    As  affected  by  original  contract. 
Additional  matter  to  foot-note  21.13 
Additional  matter  to  foot-note  22. 14 

§  86.    Same.    Other  general  essentials.15 
§  87.    Same.     Nature  and  manner  of  use  of  materials.10 
•  §  88.    Same.    Definition  of  ' '  furnished. "  * 7 

is  See  f  82  Treatise  and  this  Supplement,  ante. 

KMM*.  See  Smith  v.  Chicago  L.  &  C.  Co.  (Kan.,  March  11,  1911), 
114  Pac.  Rep.  372,  373,  374. 

is  California.     Howe  v.  Schmidt   (Cal.),  90  Pac.  Rep.  1056. 

Kaa*a*.  Subcontractor  under  the  statute  (Gen.  St.  1909,  §  6246) 
must  contract  with  reference  to  the  original  contract,  that  Is,  he 
must  have  knowledge  of  such  original  contract  and  that  the  material 
to  be  furnished  Is  going  to  the  betterment  of  some  particular  estate: 
Smith  v.  Chicago  L.  &  C.  Co.  (Kan.,  March  11,  1911),  114  Pac.  Rep. 
372,  374;  Manufacturing  Co.  v.  Best,  63  Kan.  187,  192,  65  Pac.  Rep. 
239.  241. 

M  California.  See  J  71  this  Supplement:  51183  Code  Civ.  Proc., 
aa  amended  May  1,  1911,  Stats.  &  Admts.  1911,  pp.  1313  et  seq. 

Idaho.  The  contractor'*  agency  extends  only  to  the  purchase  of 
material  reasonably  necessary  for  the  building  of  the  structure  in 
accordance  with  the  original  contract  and  for  the  reasonable  value 
of  such  materials  only  as  are  ordinarily  sufficient  to  properly  con- 
struct the  building  in  accordance  with  the  plans  and  specifications: 
Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac.  Rep.  24,  27. 

Washington.  See  Rieflin  v.  Grafton  (Wash.,  June  1,  1911),  115  Pac. 
Rep.  851,  853. 

it  New  Mexico.  U*e  of  material*.  Neher  v.  Vivlanl  (N.  M.,  August 
10.  1910),  110  Pac.  Rep.  695,  698. 

10  Material*  mmt  be  actually  niiedt 

California.  See  Lucas  v.  Gobbi,  10  Cal.  App.  648,  652,  103  Pac. 
Rep.  157. 

Colorado.  See  Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42 
Colo.  461,  94  Pac.  Rep.  570,  573. 

Idaho.  Valley  I..  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac. 
Rep.  24,  26. 

Kan*a*.  See  Smith  v.  Chicago  L.  &  C.  Co.  (Kan.,  March  11,  1911), 
114  Pac.  Rep.  372,  373,  374. 

Nebraska.  See  Foster  v.  Dohle,  17  Neb.  631,  24  N.  W.  Rep.  208;  Weir 
v.  Barnes,  38  Neb.  875,  57  N.  W.  Rep.  750. 

New  Mexico.  Neher  v.  Viviani  (N.  M.,  August  10,  1910),  110  Pac. 
Rep.  695.  698. 

Washington.  Gate  City  L.  Co.  v.  City  of  Montesano  (Wash.,  No- 
vember 25,  1910),  111  Pac.  Rep.  799,  87  Pac.  Rep.  485. 

IT  Washington.  Place  of  delivery  of  materials  See  Chicago  L.  & 
C.  Co.  v.  McCann,  48  Wash.  174,  93  Pac.  Rep.  216. 


45  MATERIAL-MEN.  §§88,89 

Additional  matter  to  foot-note  27.18 

§  89.    Same.    Materials,  how  used.19 

Additional  matter  to  foot-note  28. 20 
Additional  matter  to  foot-note  29. 21 
Additional  matter  to  foot-note  30.22 


18  Definitions  of  "furnished": 

New  Mexico.  Compare  Smith  v.  Hicks,  14  N.  M.  560,  98  Pac.  Rep. 
138,  140. 

Oregon.  Compare  Brown  v.  Sharkey  (Oreg.,  April  25,  1911),  Hi  Pac. 
Rep.  156. 

19  California.     Horses   and  harness   let   to   a   contractor   at  a    stipu- 
lated rate  per  month,  under  control   of  the   teamster  hired  and  paid 
by   original   contractor;   no   lien   therefor:   Wood,   Curtis   &  Co.   v.   El 
Dorado  L.   Co.,   153   Cal.   230,   94  Pac.   Rep.   877. 

Oklahoma.  Material  for  paving  streets:  See  City  of  Oklahoma  v. 
Shields,  22  Okl.  265,  100  Pac.  Rep.  559. 

20  Washington.      See    Gilbert-Hunt    Co.    v.    Parry    (Wash.),    HO    Pac. 
Rep.  541,  543;  Tsutakawa  v.  Kumamoto,  53  Wash.  231,   101  Pac.  Rep. 
869,    871. 

Wisconsin.  See  McAuliff  v.  Jorgenson,  107  Wis.  132,  82  N.  W. 
Rep.  706. 

21  Lien  given,  material   in   furtherance   of  work: 
Power  and  electricity: 

California.  Power:  See  §  1183  Code  Civ.  Proc.,  as  amended  May  1, 
1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.,  allowing  lien. 

Montana.  See  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108 
Pac.  Rep.  353,  357. 

Oregon.  Electricity  for  li.ght  and  power,  "supplies"  for  mine  within 
meaning  of  L.  O.  L.  §  7444,  for  which  lien  is  given;  Grant's  Pass 
B.  &  T.  Co.  v.  Enterprise  M.  Co.  (Oreg.,  March  7,  1911),  113  Pac.  Rep. 
859.  See  Rowen  v.  Alladio,  51  Oreg.  121,  93  Pac.  Rep.  929;  Scannevin 
V.  Consolidated  M.  W.  Co.,  25  R.  I.  318,  55  Atl.  Rep.  754. 

Washington.  Computing  amount  due  for  power;  -wattmeter- volt- 
age: See  Seattle  R.  &  S.  Ry.  Co.  v.  Seattle-Tacoma  P.  Co.  (Wash., 
June  23,  1911),  116  Pac.  Rep.  289,  292. 

Camp  equipments;  no  lien  under  §  1,  c.  24,  p.  32,  Laws  1893,  amended 
by  c.  116,  p.  2,29,  Laws  1905;  Tsutakawa  v.  Kumamoto,  53  Wash.  231, 
101  Pac.  Rep.  869,  102  Pac.  Rep.  766. 

22  Without    statutory    allowance    tools    and    appliances    not    lienahle: 
Idaho.      Allowable:    Naylor   v.   Lewiston    &    S.    E.    Ry.    Co.,    14   Idaho 

789,  96  Pac.  Rep.  573,  577,  s.  c.,  95  Pac.  Rep.  827. 

Indiana.  See  Potter  Mfg.  Co.  v.  Myer  &  Co.,  171  Ind.  513,  86  N.  E. 
Rep.  837,  131  Am.  St.  Rep.  267. 

Maryland.     See  Basshor  v.  Baltimore  &  O.  R.   Co.,   65   Md.   99. 

Missouri.     See  Meistrel  v.  Reach,  56  Mo.  App.  243. 

Oregon.     See  Allen  v.  Elwert,  29  Oreg.  428,  44  Pac.  Rep.  823. 

Washington.  Gilbert-Hunt  Co.  v.  Parry  (Wash.),  110  Pac.  Rep. 
541,  543  (many  items  specifically  set  forth  in  this  case) ;  Hall  v. 
Cowen,  51  Wash.  295,  98  Pac.  Rep.  670  (scrapers);  Tsutakawa  v. 
Kumamoto,  53  Wash.  231,  101  Pac.  Rep.  869,  871,  102  Pac.  Rep.  766. 
See  Vendome  T.  B.  Co.  v.  Schettler,  2  Wash.  St.  457,  27  Pac.  Rep.  76. 
706;  Rinzer  v.  Stumpf,  116  Wis.  287,  93  N.  W.  Rep.  36. 


§§  89-91  MECHANICS'  LIENS— SUPPLEMENT.  4(j 

Additional  matter  to  foot-note  31. 23 
Additional  matter  to  foot-note  32.24 

§  90.    Same.    Lien,  when  allowed.    Package. 
Additional  matter  to  foot-note  39.25 

§  91.    Same.     Carriage  charges.     Building  as  material.26 
Additional  matter  to  foot-note  40.27 
Additional  matter  to  foot-note  41. 28 
Additional  matter  to  foot-note  42.29 


23  See  "Supplies"  post.  §  101,  this  Supplement. 

California.  See  $  1183  as  amended,  Stats.  &  Amdts.  1911,  pp.  1313 
et  seq.,  as  to  power,  and  see  authorities  to  foot-note  29  of  Treatise 
ante,  this  section. 

Oregon.  Provision*  furnished  for  men:  See  Durkheimer  v.  Copper- 
opolls  (Oreg.,  Nov.  15,  1909),  104  Pac.  Rep.  895,  896. 

Washington.  See  Tsutakawa  v.  Kumamoto,  53  Wash.,  231,  101  Pac. 
Rep.  869,  871,  102  Pac.  Rep.  766. 

24  Colorado.     Hughes  v.  Kershow,  42  Colo.  210,  93  Pac.  Rep.  1116. 
Washington.     See  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  101  Pac. 

Rep.  869,  871,  102  Pac.  Rep.  766.  But  otherwise,  If  he  deliver  money 
to  the  owner  for  the  purpose  of  paying  for  material  and  the  transac- 
tion is  in  Its  nature  the  sale  of  material;  and  where  one  who  obtains 
materials  from  his  employer,  a  manufacturer,  and  the  same  Is 
charged  to  his  wages,  and  such  material  is  furnished  for  use  In  the 
building,  he  is  a  material-man  and  is  entitled  to  a  lien:  Poplella  v. 
Zolawenski,  51  Wash.  39,  97  Pac.  Rep.  972. 

25  Powders 

California.  Definition  of  "giant  powder,"  "nitroglycerine,"  see  Peo- 
ple v.  Swaile,  12  Cal.  App.  192,  107  Pac.  Rep.  134. 

Colorado.  Powder,  fuse  and  caps:  See  Barnes  v.  Colorado  Springs 
C.  C.  D.  Ry.  Co.,  42  Colo.  461,  94  Pac.  Rep.  570,  573. 

Kansas.  Law  relating  to  sale  and  delivery  of  powder  at  mines, 
constitutional:  Ex  parte  Williams,  79  Kan.  212,  98  Pac.  Rep.  777. 

26  California.     Cells  In  jail;   "furnishings":      See   Sarver  v.   Los   An- 
geles County,  156  Cal.  187,  103  Pac.  Rep.  917.     See  Pauly  J.  B.  &  Mfg. 
Co.  v.  Commissioners,  68  Fed.  Rep.  171.     Otherwise,  when  part  of  Jail 
proper:  Sarver  v.  Los  Angeles  County,  supra;  Estle  v.  Leary,  114  Cal. 
238,   46  Pac.  Rep.  1. 

Colorado.  Building  as  material:  Compare  Hughes  v.  Kershow,  42 
Colo.  210,  93  Pac.  Rep.  1116. 

27  California.     Lucas   v.   Gobbi,   10   Cal.   App.    648,   653,   103   Pac.   Rep. 
157;   Wood.  Curtis  &  Co.   v.   El   Dorado  L.  Co.,   153   Cal.    230,   94   Pac. 
Rep.  887. 

Washington.  See  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  *  101 
Pac.  Rep.  869,  102  Pac.  Rep.  766;  Gilbert-Hunt  Co.  v.  Parry  (Wash.), 
110  Pac.  Rep.  541,  542. 

28  Oregon.     Definition  of  "Team":  Krebs  Hop  Co.  v.  Taylor,  97  Pac. 
Rep.   44,  45   (replevin). 

29  California.     Compare  Barber  A.  P.  P.  Co.  v.  Santa  Barbara  I.  Co., 
110  Pac.  Rep.  463,  464. 


47  MATERIAL-MEN.  SS  92-97 

§  92.  Same.  Nature  of  the  work  on  the  property  for 
which  the  materials  are  furnished.  The  work  must  be  upon 
real  property  and  not  merely  upon  personal  property.30 

§  93.  Same.  Alteration,  construction,  addition  to,  re- 
pair.31 

§  94.     Same.     Extent  of  alteration  or  repair.32 

§  95.  Same.  Fixtures.  There  is  no  mechanic 's  lien  on 
merely  personal  property.33 

Additional  matter  to  foot-note  50.34 

§  96.    Same.    In  mining  claims  and  mines.35 
§  97.    Same.    Street-work,  grading,  etc.36 


so  Oklahoma.  Keel  v.  Ingersoll  (Okl.,  September  13,  1910),  111  Pac. 
Rep.  214. 

Oregon.  See  Rowen  v.  Alladio,  51  Ores'.  121,  93  Pac.  Rep.  929. 
See  §  95,  additional  matter  to  note  50  of  text,  this  Supplement,  post. 

si  Oregon.     See  Rowen  v.  Alladio,  51  Greg.,  121,  93  Pac.  Rep.  929. 

Washington.  See  Stetson  &  Post  L.  Co.  v.  W.  &  J.  Sloane  Co. 
(Wash.,  December  12,  1910),  112  Pac.  Rep.  248,  249. 

32  Washington.     See    Stetson    &    Post   L.    Co.    v.    W.    &   J.    Sloane    Co. 
(Wash.,  December  12,   1910),   112  Pac.  Rep.  248,  249. 

33  Federal.     Armstrong    Cork    Co.    v.    Merchant's    R.    Co.    (C.    C.    A.), 
184  Fed.  Rep.   199,  207;   s.   c.    (C.  C.  Mo.),   171  Fed.  Rep.   778. 

Oklahoma.  Keel  v.  Ingersoll  (Okl.,  September  13,  1910),  110  Pac. 
Rep.  214. 

Oregon.  See  Rowen  v.  Alladio,  51  Oreg.  121,  93  Pac.  Rep.  929. 
See  §  92  and  note  this  Supplement,  ante. 

34  Washington.  '  American  R.  Co.  v.   Pendleton    (Wash.,  February   2, 
1911),   112  Pac.  Rep.  1117. 

35  Fixture  in   connection  •with  mine: 

California.  See  Conde  v.  Sweeney  (Cal.  App.,  August  4,  1911),  110 
Pac.  Rep.  973,  116  Pac.  Rep.  319. 

Nevada.  See  Arnold  v.  Goldfleld  T.  C.  M.  Co.  (Nev.,  July  1,  1910), 
109  Pac.  Rep.  718. 

Utah.  See  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah,  June  12, 
1909),  103  Pac.  Rep.  254,  259. 

36  As  to  sidewalks: 

Idaho.     See   Shaw  v.   Johnston,   17   Idaho   676,   107   Pac.   Rep.    399. 
Washington.     See   Hall   v.    Cowen,    51   Wash.    295,    98   Pac.   Rep.    670. 


§§  98-101  MECHANICS'  LIENS — SUPPLEMENT.  4g 

§  98.  Same.  Nature  of  property  for  which  material  must 
be  furnished.  Generally.37 

§  99.    Same.    Mines  and  mining  claims.38 

§  100.    Same.    Lien  allowed. 
Additional  matter  to  foot-note  57. 39 

§  101.  General  rights  of  material-men.40  There  is  no 
privity  between  the  owner  and  the  contractor's  material- 
men.41  It  has  been  said  in  California  that  subcontractor's 
material-men's  liens  are  not  affected  by  the  obligations  which 
exist  between  the  contractor  and  his  subcontractor.42 

The  right  of  the  subcontractor's  material-man  to  a  lien 
against  the  property,  or  the  unpaid  portion  of  the  contract 
price  under  a  valid  contract,  does  not  depend  upon  the  ma- 
terial being  ordered  by  the  contractor,  but  only  upon  the 
furnishing  of  the  material  and  its  use  in  the  structure, 
whether  at  the  instance  of  the  owner,  or  of  his  agent,  actual, 
ostensible  or  statutory.43  It  is  not  affected  by  the  failure 

37  See  §  87,  this  Supplement,  ante. 

38  See  §1183,  Code   Civ.   Proc.,  as  amended  May   1,   1911    (Stats,   and 
Amdts.  1911,  pp.  1313,  et  seq.). 

39  Oregon,     gee  Escott  v.  Crescent  C.  &  N.  Co.    (Oreg.,  January  25, 
1910),   106  Pac.  Rep.   452,  455. 

40  Failure  to  pay  occupation  license  by  material-man:     See   Fossett 
v.  Rock-Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833;  Prather 
v.  People,  85  111.  36. 

Damage*  for  delay  In  transportations  See  St.  Louis  &  S.  F.  R.  Co. 
v.  Gaba,  78  Kan.  432,  97  Pac.  Rep.  435;  Guetzkow  Bros.  Co.  v.  Andrews, 
92  Wis.  214,  66  N.  W.  Rep.  119,  52  L.  R.  A.  209,  53  Am.  St.  Rep.  909. 

Damages  for  delay  In  delivery  of  material:  See  Standard  L.  Co.  v. 
Miller  &  Vidor  L.  Co.,  21  Okl.  617,  96  Pac.  Rep.  761,  765. 

Waiver  of  right  to  rescind  for  non-payment  of  Installment,  by 
granting  time:  See  Fairchild-Gilmore-Wilton  Co.  v.  Southern  R.  Co., 
158  Cal.  264,  110  Pac.  Rep.  951,  955. 

41  California.     San    Pedro    L.    Co.    v.    Schroeder,    156    Cal.    158,    161, 
103  Pac.  Rep.  888. 

Idaho.     See  Larson  v.  Carter,  14  Idaho  511,  94  Pac.  Rep.  825,  827. 

Kansas.  See  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613', 
103  Pac.  Rep.  80,  81. 

Washington.  Privity  with  contractor  and  his  wife,  see  Rasmussen 
v.  Liming,  50  Wash.  184.  96  Pac.  Rep.  1044. 

42  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.   App.    460,  462,   94   Pac.   Rep.   775. 

43  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7   Cal.   App.   460,   462,   94   Pac.   Rep.   775. 


49  MATERIAL-MEN.  SS  101-102 

of  the  original  contractor  to  protect  himself  from  misappro- 
priation of  funds  by  his  subcontractor.44 

Additional  matter  to  foot-note  60.45 

Additional  matter  to  foot-note  63. 46 

§  lOla.  Same.  Extent  of  lien.  The  contractor's  ma- 
terial-man is  only  entitled  to  be  paid  by  the  owner  of  the 
building  when  there  is  something  owing  and  unpaid  from 
the  owner  to  the  original  contractor,  under  a  valid  statutory 
original  contract.47 

Subcontractors'  material-men  are  paid  out  of  the  fund  be- 
fore their  subcontractors;  and  if  the  fund  is  not  sufficient, 
the  loss,  if  any,  must  be  borne  by  such  subcontractors.48 

§  102.     General  obligations  of  material-men. 
Additional  matter  to  foot-note  67.49 


44  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  '&  D.  Co., 
7   Cal.   App.   460,  462.   94   Pac.   Rep.   775. 

Kansas.  The  statute  does  not  authorize  a  lien  in  favor  of  the 
subcontractor's  material-man  ("Subcontractor  under  a  subcontractor," 
according  to  the  decision):  Home  L.  &  S.  Co.  v.  School  Dist.  (Kan., 
May  6,  1911),  115  Pac.  Rep.  590;  Nixon  v.  Cydon  Lodge,  56  Kan.  298, 
43  Pac.  Rep.  236. 

45  Personal    judgment    by    contractor's    material-men    against    con- 
tractor: 

California.  See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
524-526,  97  Pac.  Rep.  414,  420. 

Colorado.  See  Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co., 
42  Colo.  461,  94  Pac.  Rep.  570,  573. 

Washington.     Rasmussen  v.  Liming,  50  Wash.  184,  96  Pac.  Rep.  1004. 

46  "Supplies"  broader  term  than  "Materials": 
Michigan.     Lawson  v.  Higgins,  1  Mich.  225. 

Washington.  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  101  Pac. 
Rep.  869,  102  Pac.  Rep.  766. 

"Provisions    and    supplies": 

Washington.  Tsutakawa  v.  Kumamoto,  supra.,  decided  under  an 
amended  act,  and  explaining  Laidlaw  v.  Portland  R.  Co.,  42  Wash. 
292,  84  Pac.  Rep.  855. 

47  California.     McCue  v.  Jackman,  7  Cal.  App.   703,  95  Pac.   Rep.   673 
(before   amendment   of   statute   in    1911). 

See  §  454  Treatise,  and  additional  matter  to  foot-note  46  of  Treatise, 
this  Supplement,  post. 

48  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  Alpp.  460,  463,  94  Pac.  Rep.  775. 

49  Damages   for   breach   of   contract   to   deliver   material:      See   Fair- 
child-Gilmore-Wilton   Co.   v.    Southern   R.   Co.,    110   Pac.   Rep.    951,   954. 

Bloom's  Sup. — 4 


S  103  MECHANICS'  LIENS — SUPPLEMENT.  50 

§  103.    Same.    Knowledge  of  terms  of  original  contract.50 

so  See  {  71  Treatise  and  this  Supplement,  ante. 

California.  See  amendment  of  May  1,  1911,  to  $  1183,  Code  Civ. 
Proc.,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

Idaho.  Compare  Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682, 
93  Pac.  Rep.  24,  26. 

Washington.  Compare  Rieflin  v.  Graf  ton  (Wash.,  June  1,  1911), 
115  Pac.  Rep.  851,  853. 


51  PERSONS  PERFORMING  LABOR.  85  104-110 


CHAPTER  VII. 

PERSONS  PERFORMING  LABOR. 

§  104.     Scope  of  chapter.1 

§  105.    Statutory  provision.2 
Additional  matter  to  foot-note  2.3 

§  106.     Constitutional  provision.4 

§  107.  Laborer  distinguished  from  contractor,  subcon- 
tractor and  material-man. 

Additional  matter  to  foot-note  5.5 

§  108.     Laborer  does  not  create  intermediate  lien-holders.6 

§  109.     Personal  services. 

Additional  matter  to  foot-note  7.7 

§  110.    Definitions.     Various  kinds  of  laborers. 
Additional  matter  to  foot-note  8.8 

1  See  generally,  "Labor  for  which  lien  is  given,"  §§  130  et  seq.,  this 
Supplement,  post. 

2  "Labor";   Sunday  law:     See   City   of   Topeka   v.   Crawford,   78   Kan. 
583,   96  Pac.  Rep.  862. 

3  California.     See    §  1183,    Code    of    Civ.    Proc.,    as    amended    May    1, 
1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.     Employing  unnaturalized 
aliens  under  Good  Roads  Law,  Stats.  &  Amdts.  1907,  p.   636,  see  City 
S.  I.  Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  Rep.  933,  941. 

*  See  §§  28-41,  this  Supplement,  ante. 

5  Oklahoma.  "Person  doing  contract  -work,"  see  Ex  parte  Unger, 
22  Okl.,  755,  98  Pac.  Rep.  999. 

Subcontractor's  artisans  and  laborers  have  liens:  Vandenberg  v. 
P.  T.  Walton  L.  Co.,  19  Okl.,  169,  92  Pac.  Rep.  149. 

e  See  "Original  Contractor,"  §§45-65;  "Subcontractor,"  §§66,  76, 
this  Supplement,  ante. 

7  New  Mexico.     See  Steams-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co., 
14  N.  M.  300,  93  Pac.  Rep.  706,  710. 

Oregon.  See  Durkheimer  v.  Copperopolis  C.  Co.  (Oreg.,  November 
15,  1909),  104  Pac.  Rep.  895,  following  Smallhouse  v.  Kentucky  & 
M.  G.  &  S.  M.  Co.,  2  Mont.  443.  See  Washburn  v.  Intermountain  M. 
Co.  (Oreg.,  June.  28,  1910),  109  Pac.  Rep.  382,  386. 

8  Definitions    of    "artisan,"    "laborer,"    "other    person,"    "workman," 


§§  111-113  MECHANICS'  LIENS— SUPPLEMENT.  52 

§  111.    Nature  of  labor  for  which  lien  is  given. 
Additional  matter  to  foot-note  9.9 

§  112.  General  rights  of  laborers.  Similar  to  those  of 
material-men.  Laborers  are  not  entitled  to  a  personal  judg- 
ment against  the  original  contractor,  in  the  absence  of 
privity.10  The  subcontractor's  laborers  may  file  a  claim  of 
lien  notwithstanding  the  fact  that  their  subcontractor  may 
have  filed  a  claim  of  lien  covering  their  claims.11  It  is  said 
that  the  subcontractor's  laborers  are  not  affected  by  the  ob- 
ligations which  exist  between  the  subcontractor  and  the 
original  contractor.12 

Additional  matter  to  foot-note  10.12a 

§  113.    Same.    Priorities. 
Additional  matter  to  foot-note  II.13 

"artificer,"  "mechanic,"  "ornftumnn":     State  v.   City  of  Ottawa    (Kan., 
February  11,  1911),  113  Pac.  Rep.  391,  393. 

Waxhlngton.  Blackamlth,  wagon-maker,  machinist,  boiler-maker; 
plumber  not  machlnlMtt  Modern  P.  &  H.  Co.  v.  American  S.  F.  Co. 
(Wash.,  January  28,  1910),  106  Pac.  Rep.  628. 

9  In   a   mine: 

California.  In  development  or  working  by  aubtractlve  procenaj 
watchman,  roustabout,  well-cleaner:  Donaldson  v.  Orchard,  6  Cal. 
App.  641,  645,  92  Pac.  Rep.  1046. 

Oregon.  See  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  January  25, 
1910),  106  Pac.  Rep.  452,  455. 

Cooking  (or  employer*,  no  lien:  Durkheimer  v.  Copperopolls  C.  Co. 
(Oreg.,  November  15,  1909),  104  Pac.  Rep.  895,  898. 

Washington.  Foreman;  no  lien:  Washburn  v.  Intermountain  M. 
Co.  (Greg.,  June  28,  1910),  109  Pac.  Rep.  382,  385,  citing  Oregon  case, 
supra. 

Superintendent  of  building,  lien  allowed:  MacDonald  v.  O'Shea, 
58  Wash.  169,  108  Pac.  Rep.  436,  439. 

Lathing,  plaMterlng  plumbing,  lien  allowed:  Coghlan  v.  Quar- 
tararo  (Cal.  App.,  March  21,  1911),  115  Pac.  Rep.  664. 

Logging:  See  Lane  v.  Lane-Potter  L.  Co.,  40  Mont.  541,  107  Pac. 
Rep.  898. 

10  California.     Goldtree  v.  City  of  San  Diego,  8  Cal.  App.   505,   506, 
97  Pac.  Rep.  216;  a.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.   218. 

11  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.   App.   460,   463,  94  Pac.   Rep.   775. 

12  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  462,  94  Pac.  Rep.  775. 

i2«  California.  Regulating  hour*  of  employment  in  mines  and  smelt- 
ers, under  Stats.  &  Amdts.  1909,  p.  279,  c.  181,  constitutional:  Ex 
parte  Martin,  106  Pac.  Rep.  235. 

is  California.  See  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac. 
Rep.  760,  765:  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 


53  PERSONS  PERFORMING  LABOR.  §S 

§  114.    Same.    Material-man's  laborers. 
Additional  matter  to  foot-note  12. 14 

§  115.    Same.    Death  of  employer. 
Additional  matter  to  foot-note  14. 15 

§  116.    Same.    Public  work. 
Additional  matter  to  foot-note  15. 16 

§  117.    General  obligations  of  laborers. 

Additional  matter  to  foot-note  16. 17 

§  118.    Same.    Death  of  employer. 

Additional  matter  to  foot-note  17. 18 


i*  California.  See  Wood,  Curtis  &  Co.  v.  El  Dorado  L.  Co.,  153 
Cal.  230,  94  Pac.  Rep.  877. 

is  "Employer  of  labor,"  in  by-laws  of  Labor  Union,  see  J.  F. 
Parkinson  Co.  v.  Building  Trades  Council,  154  Cal.  581,  98  Pac.  Rep. 
1027. 

See  §  118,  Treatise,  and  this  Supplement. 

16  See  §  626,  this  Supplement,  post. 

IT  See   §§  102  and  103,   this  Supplement,  ants. 

is  See  §  920,  this  Supplement,  post. 


§119  MECHANICS'  LIENS — SUPPLEMENT.  54 


CHAPTER  VIII. 

ARCHITECTS. 

§  119.  Architects.  Their  regulation.  Architecture  is  the 
art  of  building  according  to  certain  determined  rules.1 

Municipal  ordinances.  The  architect  must  have  knowl- 
edge of  the  building  laws,  ordinances  and  regulations  at  the 
place  where  the  structure  is  to  be  erected;  otherwise,  he  will 
be  held  liable  to  the  owner,  if,  through  ignorance  of  the 
same,  the  employer  is  damaged.2 

Additional  matter  to  foot-note  2.3 


1  Idaho.     Nave    v.    McGrane    (Idaho,    December    20,    1910),    113    Pac. 
Rep.   82,  84. 

Louisiana.  Louisiana  M.  Co.  v.  Le  Sassier,  52  La.  Ann.  2070,  28 
South.  Rep.  217. 

2  Nave    v.    McGrane     (Idaho,    December    20,    1910),     113    Pac.    Rep. 
82,    88     (an    exhaustive    decision    as    to    the    liability    of    architects, 
viewed    from    many    points);    Straus    v.    Buchman,    96    App.    Div.    270, 
89  N.  Y.  Supp.  226;  1  Bncyc.  of  Architecture,  pp.  24-25,  37.     See  Hubert 
v.  Aitken,  15  Daly  237,  2  N.  Y.  Supp.  711. 

Beams  renting  on  stud-partitions,  contrary  to  statute:  See  Straus 
v.  Buchman,  supra. 

Sanitary  ventilations     See  Hubert  v.  Aitken,  supra. 

Compliance  with  ordinance:    See  Nave  v.  McGrane,  supra,  pp.  87,  88. 

Regulations  concerning  excavations  In  streets:  See  Ex  parte 
Wilcox  (Cal.  App.,  August  24,  1910),  111  Pac.  Rep.  374. 

Stables;  building  ordinance  of  San  Francisco,  §  320,  construed, 
and  provision  with  reference  to  cost  over  (1000,  considered;  plead- 
ings: Coon  v.  Board  of  Public  Works,  7  Cal.  App.  760,  95  Pac. 
Rep.  913. 

Building  ordinance,  relating  to  permits  for  constructing  stables, 
held  unreasonable:  See  Coon  v.  Board  of  Public  Works,  supra. 

Ordinance  taxing  "persons  doing  contract  work,"  held  invalid:  Ex 
parte  Unger,  22  Okl.  755,  98  Pac.  Rep.  999.  See  State  v.  McNally, 
45  La.  Ann.  44,  12  South.  Rep.  117. 

Building  ordinance  in  chartered  cities  yields  to  general  law,  when 
conflicting:  May  v.  Craig,  13  Cal.  App.  368,  109  Pac.  Rep.  842.  See 
In  re  Hoffman,  155  Cal.  117,  99  Pac.  Rep.  517. 

Fire  limits,  ordinance  to  prevent  construction,  alteration  and  en- 
largement of  frame  buildings  within:  Morton  v.  Wessinger  (Oreg., 
February  14,  1911),  113  Pac.  Rep.  7. 

3  Cases  In  wbleh  acts  regulating  and  licensing  various  trades,  busi- 
nesses and   professions   have   been   upheld  as  constitutional: 

Barberss  State  v.  Walker,  48  Wash.  8,  92  Pac.  Rep.  775;  State  v. 
Sharpless,  31  Wash.  191,  71  Pac.  Rep.  737,  96  Am.  St.  Rep.  893. 


55  ARCHITECTS.  §§  120-123 

§  120.     Statutory  provision.4 
Additional  matter  to  foot-note  3.5 

§  121.     Definition  of  architect.6 

Additional  matter  to  foot-note  4.7 

§  122.     Contract  of  unlicensed  architect. 
Additional  matter  to  foot-note  5.8 

§  123.  Rights  of  architects.  Where  the  agreement  be- 
tween the  owner  and  architect  is  for  the  construction  of  a 
building  not  to  exceed  a  certain  cost,  and  the  architect 
plainly  fails  to  prepare  plans  which  come  within  the  limita- 
tions of  the  cost  of  construction,  the  architect  can  not  recover 
upon  the  contract,  nor  for  the  reasonable  value  of  his  serv- 
ices for  drafting  plans  and  specifications,  even  if  the  owner 
fails  to  return  them,  without  using  them.9 

A  payment  on  account  to  the  architect  does  not  amount  to 
an  acceptance  of  the  plans,  when  such  payment  is  made  be- 
fore it  is  demonstrated  by  the  bids  that  the  plans  require 

Dentistry:  State  v.  Thompson,  48  Wash.  683,  94  Pac.  Rep.  667;  In 
re  Thompson,  36  Wash.  377,  78  Pac.  Rep.  879.  See  State  ex  rel. 
Smith  v.  Board  of  Dental  Exm'rs,  31  Wash.  492,  72  Pac.  Rep.  110. 

Canning  salmon:      See  State  v.   Hume,    52   Oreg.    1,   95   Pac.   Rep.   808. 

Medicine  and  surgery:  State  v.  Carey,  4  Wash.  424,  30  Pac.  Rep. 
729.  See  Ex  parte  Bohanon  (Gal.  App.,  October  5,  1910),  111  Pac. 
Rep.  1039. 

Cases    holding   acts    unconstitutional    for   various    reasons: 

Horse-shoeing:  Re  Aubrey,  36  Wash.  308,  78  Pac.  Rep.  900,  104 
Am.  St.  Rep.  952. 

Plumbing:  State  ex  rel.  Richey  v.  Smith,  42  Wash.  237,  84  Pac. 
Rep.  851,  114  Am.  St.  Rep.  114,  5  L.  R.  A.  (N.  S.,)  674. 

4  California.     See  An  act  to  regulate  the  building  and  occupancy  of 
tenement    houses,    Stats.    &    Amdts.    1911,    c.    432,    pp.    860    et    seq.,    re- 
pealing Act  approved  April  16,  1909,  Stats.  &  Amdts.  1909,  p.  948. 

5  California.     See   §1183,    Code   Civ.   Proc.,  as   amended  May   1,   1911, 
Stats.   &  Amdts.   1911,  pp.  1313  et  seq. 

e  See  Nave  v.  McGrane  (Idaho,  December  20,  1910),  93  Pac.  Rep. 
82,  85.  Plans  and  specifications,  see  §  1290,  this  Supplement,  post. 

7  An    architect    is    an    expert    in    carpentry,    in    cements,    in    mortar, 
in  the  strength  of  materials,  in  the  art  of  constructing  the  walls,  the 
floors,    the    staircases,    the    roofs:     Hubert    v.    Aitken,    15    Daly    237, 
2  N.  Y.  Supp.  711;  Nave  v.  McGrane,  supra,  p.  88. 

8  Compare   contract  of  unlicensed  material-man,  §  119,   this  Supple- 
ment, ante. 

9  Washington.     Graham  v.  Bell-Irving,  46  Wash.  607,  91  Pac.  Rep.  8. 
See  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  83. 


§§  123-125  MECHANICS'  LIENS — SUPPLEMENT.  55 

such  a  larger  cost  of  construction ;  and  it  seems  that  the 
owner  may  recover  back  any  payment  so  made  to  the  archi- 
tect.10 

§  124.    Right  to  lien. 

Additional  matter  to  foot-note  10.11 

§  125.  Powers  of  architect.  It  is  not  in  the  power  of  the 
architect  or  engineer  to  change  or  waive  terms  of  the  con- 
tract between  the  owner  and  contractor,12  unless  such  power 
is  given  by  the  contract  itself.13  Power  to  oversee  the  work 
or  reject  materials  does  not  necessarily  give  authority  to  ac- 
cept the  completed  structure,  or  any  part  of  it.14  Under  the 
ordinary  provisions  of  construction  contracts,  and  at  least 
in  the  absence  of  express  authority,  the  chief  engineer  has  no 
authority  to  determine  questions  relating  to  the  meaning  and 
interpretation  of  the  contract  itself;  but  his  powers  are 

10  Graham  v.   Bell-Irving,   46  Wash.   607,   91  Pac.   Rep.   8.     See  Nave 
v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  83. 

11  California.     See  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

New  Mexico.  See  Steams-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co., 
14  N.  M.  300,  93  Pac.  Rep.  706,  710. 

Oregon.  See  Durkheimer  v.  Copperopolis  C.  Co.  (Oreg.,  November 
15,  1909),  104  Pac.  Rep.  895,  explaining  Willamette  Falls  T.  &  M.  Co. 
v.  Remlck,  1  Oreg.  169,  and  Culllns  v.  Flagstaff  S.  M.  Co.,  2  Utah  219, 
affirmed,  104  U.  S.  176,  26  L.  ed.  704. 

California.     City  S.  I.  Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  Rep.  933,  938. 

Colorado.  Town  of  Sterling  v.  Hurd,  44  Colo.  436,  98  Pac.  Rep. 
174,  176. 

12  Federal.     See    United    States    v.    Walsh,    115    Fed.    Rep.    697,    52 
C.  C.  A.  419. 

Georgia.     See  Cannon  v.  Hunt,  113  Ga.  501,  38  S.  E.  Rep.  983. 

Illinois.  See  McAvoy  v.  Long,  13  111.  147;  County  of  Cook  v.  Harms, 
108  111.  151. 

New  York.  See  Burke  v.  Mayor,  etc.,  of  City  of  New  York,  7  App. 
Div.  128,  40  N.  Y.  Supp.  82. 

Oregon.  Williams  v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.,  August  3, 
1910),  110  Pac.  Rep.  490,  492;  s.  c.,  Ill  Pac.  Rep.  17. 

Pennsylvania.  See  Drhew  v.  Altoona,  121  Pa.  401,  420,  15  Atl.  Rep. 
636. 

Texas.     See  G.  H.  &  S.  A.  Ry.  Co.  v.  Henry,  65  Tex.  685. 

Am  to  withholding  certificates  arbitrarily,  see  §  129,  post,  this  Sup- 
plement. 

is  Colorado.  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac. 
Rep.  918,  919. 

14  Colorado.  Town  of  Sterling  v.  Hurd,  44  Colo.  436,  98  Pac.  Rep. 
174,  177.  See  Mercantile  Trust  Co.  v.  Hensey,  205  U.  S.  298,  27  Sup. 
Ct.  535.  51  L.  ed.  816. 


57  ARCHITECTS.  §§  125,   126 

rather  limited  to  determinations  of  estimates,  classifications 
and  character  of  work  provided  by  the  contract  to  be  done 
and  performed.15 

The  architect  has  no  power  to  accept  bids  or  enter  into  a 
contract  with  the  contractor,  unless  such  power  is  given  to 
him  by  the  owner;  and  the  mere  fact  that  he  draws  plans 
and  specifications  and  is  authorized  to  have  bids  submitted 
to  ascertain  whether  the  cost  of  construction  will  exceed  a 
certain  figure  does  not  give  the  architect  authority  to  enter 
into  such  contract,  particularly  where  the  owner  refuses  to 
construct  by  reason  of  the  bids  exceeding  that  figure.16 

§  126.  Relation  between  owner  and  architect.17  While 
the  relation  between  the  owner  and  the  architect  is  not  con- 
fidential in  the  sense  that  communications  between  them  are 
privileged,  yet  there  is  a  position  of  trust  occupied  by  the 
architect,  which  he  may  easily  take  advantage  of,  if  he  so 
desires.  The  owner  does  not  know  the  rules  of  architecture ; 
he  therefore  employs  the  architect  who  makes  the  plans  in 
accordance  with  them.18  The  owner  may  not  know  all  of 
the  facts  necessary  to  be  imparted  to  the  architect  to  enable 
him  to  prepare  the  proper  plans  and  specifications,  and  it  is 
the  duty  of  the  architect  to  obtain  from  the  owner  just  that 
information  and  the  facts  he  requires  in  order  to  prepare  the 
proper  plans  and  specifications.  Hence,  if  the  plans  do  not 
fulfill  the  owner's  intentions  because  the  architect  did  not 
have  sufficient  information,  it  is  the  fault  of  the  architect  in 
not  obtaining  such  information,  as  he  should  know  better 
than  the  owner  just  what  facts  and  information  are  needed 
to  intelligently  draw  the  required  plans  and  specifications. 
Much  of  the  trouble  between  contractors  and  owners  arises 


is  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.   789,  795,  92  Pac.  Rep.  980. 

16  Oregon.     Litherland  v.  S.  Morton  Cohn  R.  B.  &  I.  Co.,  54  Oreg.  71, 
100  Pac.  Rep.   1,  102  Pac.  Rep.   303. 

17  Architect  constructing  building  upon  a  percentage  basis,  as  com- 
mon law  agent  of  owner  and  not  as  independent  contractor,  see  Loma 
Prieta  L.   Co.  v.   Hinton,   12   Cal.   App.   766,   108   Pac.   Rep.    528. 

is  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  84; 
Louisiana  M.  Co.  v.  Le  Sassier,  52  La.  Ann.  2070,  28  South.  Rep.  217. 


§§  126-129  MECHANICS'  LIENS — SUPPLEMENT.  53 

from  the  fact  that  the  plans  and  specifications  are  not  definite 
and  certain.  As  a  rule,  the  owner  knows  nothing  about  the 
details  of  the  contract  that  the  contractor  ought  to  sign  in 
order  that  the  owner  may  be  protected,  as  this  is  usually  left 
almost  wholly  to  the  architect.19 

Dual  relation  of  architect.  While  the  architect  or  engineer 
may  stand  in  the  relation  of  umpire  in  some  of  his  aspects, 
in  other  aspects  he  may  stand  in  the  relation  of  the  agent  for 
the  owner;  and  the  latter  is  so  when  the  owner  consults  him 
to  determine  the  character  of  the  material  which  should  go 
into  the  building,  and  in  this  respect  he  is  the  owner's 
agent.20 

§  127.  Same.  Agent  of  owner.  The  architect  employed 
by  the  owner  upon  a  percentage  basis,  the  architect  drawing 
the  plans  and  specifications  and  hiring  a  superintendent  to 
take  charge  of  the  hiring  of  the  labor  and  purchasing  of 
material  and  letting  subcontracts,  the  owner  to  pay  and 
advance  from  time  to  time  money  needed  to  pay  therefor,  is 
the  common  law  agent  of  the  owner.21 

§  128.    Architect  as  subcontractor.22 

§  129.  Obligations  of  Architect.  Duty  to  inspect  work. 
It  is  the  duty  of  the  architect  or  engineer  to  inspect  the 
work,  as  it  proceeds,  when  under  the  contract  he  is  made 
arbiter  or  umpire.  But  the  contractor  has  no  cause  for  com- 
plaint when  the  absence  of  the  architect  from  the  work  was 
caused  by  the  fault  of  the  contractor,  and  as  to  him  such  ab- 
sence is  excusable.23 


10  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  85. 

20  Washington.     Camp  v.  Neufelder,  49  Wash.  426,  95  Pac.  Rep.  640. 
See  §  127,  this  Supplement,  post. 

21  California.     Loma  Prieta  L.  Co.  v.  Hinton,   12  Cal.  App.   766,   768, 
108  Pac.  Rep.  528. 

Washington.  Architect,  as  owner's  agent,  giving  notice  to  con- 
tractor's surety  of  breach  of  contract,  see  Martin  v.  Empire  State 
S.  Co.,  53  Wash.  290,  101  Pac.  Rep.  876. 

22  See  Architect  as  contractor,  this  Supplement,   §  126,  ante. 

23  Colorado.     Town   of  Sterling  v.   Kurd,  44  Colo.   436,   98  Pac.  Rep. 
174,  176.     See  Duty  as  arbiter,  §§  129a  et  seq.,  this  Supplement,  post. 


59  ARCHITECTS.  §  12ga 

§  129a.  Same.  Duty  to  act  fairly  and  honestly  as  arbiter 
or  umpire.  Stipulated  certificates  or  approval  of  work  by 
the  architect  or  engineer  should  not  be  withheld  arbitrarily,24 
nor  unreasonably,25  nor  because  of  bias  against  either 
party.26 

In  making  his  estimates  or  giving  his  certificates,  the  archi- 
tect or  engineer  must  act  honestly,27  and  not  refuse  to  make 
inquiries  nor  neglect  to  inform  himself  from  proper  sources 
as  to  the  facts  in  dispute ;  nor  should  be  act  wholly  on  infor- 
mation received  from  other  persons.28  He  should  inform 
himself  as  to  the  condition  of  the  matters  or  works  he  is  to 
determine  upon,29  and  the  nature  of  the  work  or  classifica- 
tion to  which  it  applies.30  He  should  not  fail  to  make  a 
personal  examination  and  exercise  his  independent  judg- 
ment,31 and  he  should  not  act  in  such  manner  that  there  may 
be  imputed  to  him  actual  or  constructive  fraud.32 

24  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.  789,   785,   92  Pac.  Rep.   980. 

Montana.  Piper  v.  Murray  (Mont.,  April  22,  1911),  115  Pac.  Rep. 
669,  671. 

Utah.  Midgley  v.  Campbell  Bldg.  Co.  (Utah,  January  11,  1911), 
112  Pac.  Rep.  820. 

Washington.  Sweatt  v.  Bonne  (Wash.,  September  2,  1910),  110 
Pac.  Rep.  617;  Camp  v.  Neuf elder,  49  Wash.  426,  95  Pac.  Rep.  640. 

25  California.     Coplew  v.  Durand,  153  Cal.   278,   281,   95  Pac.  Rep.   38. 

26  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.   789,  795,  796,  92  Pac.  Rep.  980. 

27  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  supra. 
Kentucky.     See  Cummings  v.  Bradford,  22  S.  W.  Rep.  548. 
Washington.     Pinickneff    v.    Johnson,    54    Wash.    156,    102    Pac.    Rep. 

1047;    Camp.   v.   Neuf  elder,    49    Wash.    426,   95    Pac.   Rep.    640.     See   Mc- 
Kivor  v.   Savage    (Wash.,   September  19,   1910),   110  Pac.   Rep.   811,   812. 

28  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.  789,  795,  92  Pac.  Rep.  980. 

Utah.  Midgley  v.  Campbell  Bldg.  Co.  (Utah,  January  4,  1911),  112 
Pac.  Rep.  820. 

29  Idaho.     Nelson  Bennett  Co.  v.   Twin  Falls  L.  &  W.  Co.,   supra. 

30  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.   &  W.  Co.,  supra. 
Washington.    Pinickneff  v.  Johnson,  54  Wash.  156,  102  Pac.  Rep.  1047. 
si  Utah.     Midgley    v.    Campbell    Bldg.    Co.    (Utah,    January    4,    1911), 

112  Pac.  Rep.  820. 

Washington.  Use  v.  Aetna  I.  Co.,  55  Wash.  487,  104  Pac.  Rep.  787; 
Camp  v.  Neufelder,  49  Wash.  426,  95  Pac.  Rep.  640.  See  Van  Hook  v. 
Burns,  10  Wash.  22,  38  Pac.  Rep.  763;  McDonald  v.  Lewis,  18  Wash. 
300,  51  Pac.  Rep.  387;  Long  v.  Pierce  County,  22  Wash.  354,  61  Pac. 
Rep.  142. 

32  California.  See  City  S.  I.  Co.  v.  Marysville,  155  Cal.  419,  431,  432, 
101  Pac.  Rep.  308. 


§  129a 


MECHANICS'  LIENS—  SUPPLEMENT. 


In  extensive  works,  the  chief  engineer  can  not  measure 
every  yard  of  earth  and  material  cut  and  classify  the  same 
personally,  and  he  must  in  some  measure  rely  upon  informa- 
tion derived  from  other  sources  ;  33  but  in  every  case  the 
decision  of  the  chief  engineer,  as  arbiter  under  the  contract, 
must  be  the  result  of  a  fair  and  deliberate  judgment  ;  and  as 
his  functions  in  this  regard  are  of  a  quasi-judicial  character, 
they  can  not  be  delegated  to  any  one  else  ;  but  he  must  hear 
and  discover  the  facts  and  take  such  steps  as  will  enable  him 
to  get  in  possession  of  the  facts  in  controversy  in  order  to 
render  such  judgment.34  For  him  to  rely  entirely  upon  the 
statements  and  judgment  of  a  subordinate,  whom  he  knows 
or  has  reason  to  believe  is  prejudiced  against  the  contractor 
is  a  species  of  fraud  which  the  law  will  not  tolerate.35 

Colorado.  Town  of  Sterling  v.  Kurd,  44  Colo.  436,  98  Pac.  Rep. 
174,  176.  See  Empson  P.  Co.  v.  Clawson  (Colo.),  95  Pac.  Rep.  546. 

Idaho.  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.  14  Idaho  5, 
93  Pac.  Rep.  789,  795,'  92  Pac.  Rep.  980.  See  Spaulding  v.  Coeur 
d'Alene  Ry.  Co.,  5  Idaho  528,  61  Pac.  Rep.  408. 

Illinois.     See  Mantonya  v.  Reilly,  83  111.  App.  275,  affirmed  84  111.  183. 

Michigan.  See  Lamson  v.  City  of  Marshall,  133  Mich.  250,  95  N.  W. 
Rep.  78. 

Montana.  See  Piper  v.  Murray  (Mont.,  April  22,  1911),  115  Pac. 
Rep.  669,  672. 

Waahlngrton.  Use  v.  Aetna  I.  Co.  55  Wash.  487,  104  Pac.  Rep.  787; 
Sweatt  v.  Bonne  (Wash.,  September  3,  1910),  110  Pac.  Rep.  617.  See 
McKivor  v.  Savage  (Wash.,  September  19,  1910),  110  Pac.  Rep.  811,  812; 
Craig  v.  Geddis,  4  Wash.  391,  30  Pac.  Rep.  396;  Schmidt  v.  North 
Yakima,  12  Wash.  121,  40  Pac.  Rep.  890;  Dickerman  v.  Reeder,  109 
Pac.  Rep.  1060. 

WlHconain.     See  Seibert  v.   Roth,   118  Wis.  250,   95  N.  W.  Rep.  119. 

See  also  Davis  v.  King,  66  Conn.  465,  34  Atl.  Rep.  107,  50  Am.  St. 
Rep.  104;  Edwards  v.  Hartshorn,  72  Kan.  19,  82  Pac.  Rep.  520,  1  L.  R.  A, 
(N.  S.),  1050;  Martinsburg  &  Potomac  R.  Co.  v.  March,  114  U.  S.  549, 
5  Sup.  Ct.  1035,  29  L.  ed.  255;  Williams  v.  Chicago,  etc.,  R.  Co.,  112 
Mo.  463,  20  S.  W.  Rep.  631,  34  Am.  St.  Rep.  403;  Mundy  v.  L.  &  N.  R. 
Co.,  67  Fed.  Rep.  633,  14  C.  C.  A.  583;  Baltimore,  etc.,  Ry.  Co.  v. 
Scholes.  14  Ind.  App.  524,  43  N.  E.  Rep.  156,  56  Am.  St.  Rep.  307,  and 
notes. 

33  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93   Pac.  Rep.   T89,  797,   92  Pac.   Rep.   980. 

Xew  York.  See  Sweet  v.  Morrison,  116  N.  Y.  31,  22  N.  E.  Rep.  276, 
15  Am.  St.  Rep.  376. 

MiiMNnrliunettH.     Palmer  v.   Clark,   106   Mass.   373. 

34  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho,  5, 
93  Pac.  Rep.  789,  797,  92  Pac.  Rep.  980. 

35  Idaho.     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.  789,  797,  92  Pac.  Rep.  980. 


ARCHITECTS. 


§  129b.  Same.  Duties  in  general.  The  architect  by  his 
employment  as  such  undertakes  to  possess  reasonable  skill, 
expertness  and  knowledge  in  the  things  he  is  required  to 
know,  and  to  exercise  reasonable  care  and  diligence  in  per- 
forming the  services  he  undertakes  to  perf.orm  and  in  super- 
vising the  work  of  construction.36 

The  rule  applicable  generally  to  members  of  learned  pro- 
fessions is  equally  applicable  here.  These  obligations  in- 
clude the  skill  and  knowledge  necessary  to  the  planning  of 
structures,  qualities  and  strength  of  materials,  their  weight 
and  relationship  to  the  various  operations  to  be  performed 
by  the  many  trades  represented  in  building,  and  a  knowledge 
of  all  other  matters  directly  related  to  drawing  plans  and 
specifications.37 

The  architect  must  furnish  the  owner  with  preliminary 
sketches  and  estimates  in  order  to  avoid  mutual  mistakes; 
also,  detailed  and  completed  plans  and  specifications,  and,  if 
requested,  estimates  of  the  quantities  and  costs  of  material, 
a  proper  contract  to  be  entered  into  by  the  contractor,  where 
the  architect  undertakes  to  draw  such  contract,  a  proper 
form  of  bond,  proper  instructions  to  bidders  and  a 
traverse  section.  The  plans  and  specifications,  contract  and 
bond  should  be  so  specific  that  there  can  be  no  valid  contro- 
versy as  to  any  matters  therein  contained.38  It  has  already 
been  shown  that  it  is  the  duty  of  the  architect  to  see  that  the 
plans  and  specifications  embody  the  intentions  and  require- 
ments of  the  owner  and  to  secure  the  necessary  information 
from  the  owner  to  enable  him  to  make  definite  such  inten- 
tions and  requirements.39 

Where  the  intention  of  the  owner  contemplates  the  en- 
largement of  the  structure,  or  the  addition  of  other  stories 
at  a  future  time,  it  is  necessary  for  the  architect  to  inquire 

36  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  85; 
Straus    v.    Buchman,    96    App.    Div.    270,    89    N.    Y.    Supp.    226;    Hubert 
v.  Aitken,  15  Daly  237,  2  N.  Y.  Supp.  711.     See,  also,  Klnney  v.  Mami- 
towa  County,   135  Fed.  Rep.  491,  68  C.  C.  A.  203. 

37  Nave    v.    McGrane,    supra.,    quoting    from   Vol.    1,    Cyclopaedia    of 
Architecture,  pp.  350-351. 

38  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  84. 

39  See  §  126,  this  Supplement,  ante. 


§§  129b    129c    MECHANICS'  LIENS — SUPPLEMENT.  §2 

as  to  the  number  of  the  stories  to  be  added,  and  at  least 
generally  as  to  their  purpose  and  arrangement,  and  means  of 
access  from  one  to  another,  so  that  the  plumbing,  heating, 
lighting,  furnace  flues,  stairways  and  interior  arrangements 
generally,  as  well  as  the  foundations  and  walls,  may  be  de- 
signed for  strength  and  safety,  to  practically  carry  out  the 
future  intentions  of  the  owner.40 

§  129c.  Same.  Plans  and  specifications.  Duty  to  pre- 
pare. The  duty  to  prepare  plans  and  specifications  so  as  to 
carry  out  the  intention  of  the  owner  has  been  already  al- 
luded to.41  Such  plans  and  specifications  must  be  suf- 
ficiently specific  to  prevent  any  legitimate  controversy  con- 
cerning the  kinds  and  qualities  and  quantities  of  materials 
to  be  used,  or  the  character  of  the  workmanship. 

Definition  of  ' '  plan. "  A  "  plan, ' '  when  applied  to  a  build- 
ing, is  an  architectural  drawing  representing  a  horizontal 
section  of  the  various  floors  or  stories  of  the  building,  the 
disposition  of  the  apartments  and  walls,  with  the  situation 
of  the  doors,  windows, — in  fact,  represents  the  different 
stories  as  they  are  to  be  built,  and  the  whole  as  it  will  appear 
when  completed.42 

Definition  of  "specifications."  Specifications  in  architec- 
ture embrace,  as  understood  by  the  profession,  not  only  the 
dimensions  and  mode  of  construction,  but  a  description  of 
every  piece  of  material,  its  kind,  length,  breadth,  and  thick- 
ness, and  the  manner  of  joining  the  separate  parts  together.43 
"The  word  specifications  when  applied  to  a  building  means 

40  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  85. 

41  See    S  129b,  this  Supplement,   ante. 

42  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  85; 
State  v.  Kendall,  15  Neb.  262,  18  N.  W.  85. 

43  Bouvier  defines  them  as  "a  particular  and  detailed  account  of  a 
thing"; 

Gwilt:  "They  are  an  accurate  description  of  the  materials  and 
work  to  be  used  and  performed  in  the  execution  of  a  building." 

Worcester's  Diet.:  "A  written  instrument  containing  a  good  and 
minute  description,  account,  or  enumeration  of  particulars": 

Gilbert  v.  United  States,  1  Ct.  Cl.  28,  citing  Encyc.  of  Architecture, 
p.  595,  par.  19;  quoted  in  Nave  v.  McGrane  (Idaho,  December  20,  1910), 
113  Pac.  Rep.  82,  85. 


63  ARCHITECTS.  §§  12gCj 

a  specific  and  detailed  statement  of  the  materials  to  be  used 
in  the  building  and  the  manner  of  performing  the  work.44 

Requisites  of  plans.  "The  plans  when  completed  should 
(1)  conform  with  the  instructions  given  to  the  architect;  (2) 
comply  with  all  laws  which  may  be  applicable;  (3)  not  in- 
fringe the  rights  of  any  third  person;  and  (4)  be  in  accord- 
ance with  all  rules  of  the  architect's  science  and  art.  It 
must  be  remembered  that  the  employer's  mere  approval  will 
not  be  an  excuse  for  faults,  of  which  the  employer  is  not  a 
competent  judge."  45 

Requisites  of  Specifications.  Specifications  must  be  so 
definite  as  not  to  leave  the  quality  of  the  material  or  of  the 
workmanship  to  the  mutatory  whims  or  caprice  of  the  super- 
vising architect  or  the  contractor;  the  plans  and , specifica- 
tions should  be  complete,  definite  and  specific.46 

§  129d.  Same.  Duty  as  to  protection  of  adjoining 
property.  Where  the  law  requires  the  same,  provision  should 
be  made  in  the  specifications  for  protecting  the  walls  and 
foundations  of  the  adjoining  buildings  and  the  other  lines  of 
the  adjoining  properties  from  caving;  for,  if  no  provision  is 
made  therefor,  the  question  might  .arise  as  to  whether  the 
contractor  is  required  to  make  adequate  protection  therefor, 
estimated  in  the  contract  price,  or  the  owner.47 

44  State  v.  'Kendall,  15  Neb.  262,  18  N.  W.  Rep.  85;  Nave  v.  McGrane, 
supra. 

45  Nave  v.  McGrane   (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  85, 
quoting  1   Encyc.  of  Architecture,  bottom  page  362. 

46  Nave  v.  McGrane,  supra,  p.  84. 

47  Nave  v.  McGrane   (Idaho,  December  20,  1910,   113  Pac.  Rep.   82,  86. 
Specifications : 

As  to  concrete  work  and  composition  of  concrete;  method  of  meas- 
uring cement,  bags  and  barrels,  loose  or  compact;  cement  mortar;  it 
is  not  sufficient  to  state  that  one  barrel  of  cement  shall  be  used  for 
so  many  barrels  of  sand;  specification  held  insufficient:  See  Nave  v. 
McGrane,-  supra,  p.  86. 

As  to  foundation  and  masonry  below  ground;  "slushed  solid  with 
good  lime  and  sand  mortar";  held  insufficient,  under  an  ordinance  and 
authorities  on  architecture:  See  Nave  v.  McGrane,  supra,  pp.  86,  87. 

Am  to  electric  wiring;  held  insufficient  on  many  grounds:  See  Nave 
v.  McGrane,  supra,  p.  87. 

National  Electric  Code,  used  by  fire  underwriters,  held  insufficient, 
as  simply  formulating  general  principles  according  to  which  electric 
work  should  be  done,  and  not  specific:  See  Nave  v.  McGrane,  supra, 
p.  87. 


§§  129e-129h    MECHANICS*  LIENS— SUPPLEMENT.  54 

§  129e.  Various  duties  architects  must  perform.  Traverse 
section.  The  first  question  that  occurs  to  the  owner  is  the 
cost  of  construction ;  and  he  generally  requests  the  architect 
to  compute  the  cost  of  the  several  items  going  into  the  con- 
struction of  the  building  so  as  to  ascertain  the  total  cost. 
The  traverse  section  is  one  of  the  necessary  drawings  to  ac- 
company the  specifications.48 

§  129f.  Same.  Instructions  to  bidders.  The  architect 
should  prepare  proper  instructions  to  the  bidders  to  prevent 
mistakes  and  misunderstandings;  and  the  architect  usually 
furnishes  forms  of  proposals  for  bidders  to  permit  com- 
petitive bidders  to  do  the  same  work  in  the  same  manner.49 

§  129g.  Same.  Bids.  Proposals  for  bids  should  be  ac- 
companied by  the  proposed  contract,  particularly  where  they, 
or  the  plans  and  specifications  submitted  therewith,  refer  to 
any  contract,  in  order  that  the  acceptance  of  the  bid  by  the 
owner  may  not  result  in  a  mere  acceptance  of  a  proposition 
to  enter  at  a  later  date  into  a  contract,  the  terms  of  which 
are  not  fixed  and  definite.50 

If 'the  plans  and  specifications  are  not  definite  and  certain 
as  to  the  kinds  and  qualities  of  material,  the  class  of  work- 
manship, and  the  like,  the  bid  to  construct  the  building  will 
only  indicate  a  willingness  to  negotiate  further  in  regard  to 
the  matters  not  specified,  and  its  acceptance  will  express  a 
like  willingness;  and  neither  party  will  be  bound,  as  their 
minds  have  not  met,  unless  they  subsequently  agree  upon 
the  contract.51 

§  129h.  Same.  The  contract.  Where  the  architect  un- 
dertakes to  draw  up  the  building  contract,  he  impliedly 

Am  to  plumbing:  and  heatings  specifications  held  insufficient:  See 
Nave  v.  McGrane,  supra,  p.  88. 

48  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  86. 

49  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  84. 

00  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  85. 
See  Gill  Mfg.  Co.  v.  Hind   (A.  C.),  18  Fed.  Rep.  673;  Shepard  v.  Car- 
penter, 54  Minn.  153,  55  N.  W.  Rep.  906. 

01  Nave  v.  McGrane,  supra. 


65  ARCHITECTS.  §§  129h-129j 

agrees  that  he  possesses  reasonable  skill  in  drafting  the 
instrument  such  as  is  possessed  by  those  in  the.  legal  pro- 
fession. The  contract  should  show  the  time  of  beginning 
and  completion  of  the  work,  the  dates  and  rates  of  payment, 
and  the  kind  and  amount  of  indemnity  insurance  to  be 
carried,  and  other  necessary  details,  all  of  which  should  be 
definite  and  specific  and  expressed  in  proper  legal  form.52 

The  contract  or  specifications  should  provide  for  the  cer- 
tificate of  inspection  by  the  architect,  and  if  insurance  should 
be  carried  pending  completion  of  the  building,  provisions  for 
bearing  loss  in  case  of  destruction,  for  delays,  for  modifica- 
tion of  the  plans  or  specifications  as  the  work  progresses,  and 
stipulations  regarding  changes  and  extras.53 

§  129i.  Same.  Bond.  A  proper  form  of  bond  should  be 
provided  by  the  architect,  if  he  undertakes  to  draw  up  the 
building  contract,  so  that  the  owner  may  comply  with  any 
law  requiring  the  same  and  that  the  owner  may  know  what 
security  he  is  to  have  against  liens  and  damages  and  in  order 
that  the  bidders  may  understand  to  what  expense  they  will 
be  put  by  this  item,  and  the  liability  that  they  may  incur.54 

§  129j.  Same.  Liability  of  architect.  For  failure  of  the 
architect  to  comply  with  his  legal  duty  with  regard  to  the 
plans  and  specifications,  bond  or  contract,  the  architect  is 
liable  to  the  owner,  and  he  can  not  under  ordinary  circum- 
stances recover  from  the  owner  for  the  preparation  of  the 
same,  particularly  where  such  plans  are  not  used  by  the 
owner.55 

The  burden  of  proving  their  inadequacy  rests  upon  the 
owner;  but  the  testimony  of  contractors  to  the  effect  that 
certain  plans  and  specifications  are  sufficiently  definite  and 
specific  to  enable  them  to  bid  on  the  construction  will  not 

52  Nave   v.   McGrane    (Idaho,   December    20,    1910),    113    Pac.    Rep.    82, 
84,  85. 

See,  generally,  Building  Contracts,  §§  193-360,  Treatise,  and  this 
Supplement. 

53  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  88. 

54  Nave  v.  McGrane,  supra,  p.  84. 

55  Nave  v.  McGrane,  supra. 

Bloom's  Sup. — 5 


§  129J  MECHANICS'  LIENS — SUPPLEMENT.  QQ 

• 

be  taken  as  against  the  plans  and  specifications  themselves, 
when  they  clearly  show  that  they  are  not  definite  and  cer- 
tain and  that  they  are  not  in  conformity  with  the  recognized 
authorities  on  engineering,  contracts  and  specifications  and 
architecture;  and  this  is  especially  so  where  the  plans  and 
specifications  will  permit  a  bidder  or  contractor  to  figure 
on  first-class  material  and  workmanship  and  are  not 
explicit  enough  to  prevent  his  using  inferior  material  or  per- 
forming poor  workmanship  in  the  construction  of  the  build- 
ing.56 

There  is  always  an  implied  contract  on  the  part  of  the 
architect  that  the  work  will  be  suitable  for  the  purpose  for 
which  it  is  prepared;  and,  apart  from  questions  of  public 
policy,  this  principle  will  prevent  him  from  recovering  upon 
plans  and  specifications  prepared  in  violation  of  law,  unless 
he  was  directed  so  to  prepare  them  by  the  owner.57 

56  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  84. 
87  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac.  Rep.  82,  88; 
Straus  v.  Buchman,  96  App.  Div.  270,  89  N.  Y.  Supp.  226. 


LABOR  FOR  WHICH  A  LIEN  IS  GIVEN.      SS  130-135 


CHAPTER  IX. 
LABOR  FOR  WHICH  A  LIEN  IS  GIVEN. 

§  130.    Scope  of  chapter. 
Additional  matter  to  foot-note  2.1 

§  131.  Statutory  provisions,  generally.  Structure.  First 
clause. 

Additional  matter  to  foot-note  3.2 

§  132.  Same.    Mines.    Second  clause.3 

§  133.  Same.     Grading,  etc.4 

§  134.  Same.    Three  grand  divisions.    Generally.5 

§  135.  Structures  and  mines.    In  general.6 

1  Oregon.     See,'  generally,    Escott    v.    Crescent    C.    &    N.    Co.    (Oreg., 
January  25,   1910),   106  Pac.  Rep.  452,  455. 

2  California.     Under    the    amendment    of    1911    to    §  1183,    Code    Civ. 
Proc.,  Stats.  &  Amdts.  1911,  p.  1313,  structures  and  mines  are  placed  in 
separate  clauses,  and  a  clearer  segregation,  to  some  extent,  at  least, 
may  be  observed. 

3  California.     Mines    are    placed    in    a    separate   paragraph    from    the 
objects    enumerated   as    structures    in    the   amendment   of    §  1183,   Code 
Civ.   Proc.,  Stats.   &  Amdts.   1911,  p.   1313. 

4  California.     §  1191,   Code    of  Civ.   Proc.,   remains   untouched   by   the 
amendment  of  1911,  Stats.  &  Amdts.   1911,  p.   1313. 

Definition  of  "grading":  See  Hill  v.  Clark,  7  Cal.  App.  609,  612, 
95  Pac.  Rep.  382. 

Idaho.  See  Naylor  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  789,  96 
Pac.  Rep.  573;  s.  c.,  95  Pac.  Rep.  827. 

Washington.  Lien  for  clearing  land:  See  Owen  v.  Casey,  48  Wash. 
673,  94  Pac.  Rep.  473. 

5  California.     The    three    grand    divisions    still    survive    under    the 
amendment  of  1911,  Stats.  &  Amdts.  1911,  p.  1313. 

6  California.     Under    the    amendment    to    §  1183,    Code    Civ.    Proc.,    of 
1911,   Stats.    &    Amdts.    1911,    pp.    1313    et    seq.,   the   labor   for   which    a 
lien  is  given  has  been  extended,  both  in  the  case  of  mines  and  struc- 
tures;  and  liens  are   now   expressly   provided,    which   previously   were 
in  doubt  or  denied. 


§§  136-142  MECHANICS'  LIENS— SUPPLEMENT.  gg 

§  136.     Importance  of  fixing  clause  under  which  case  falls.7 

§  137.    Same.    Classes  not  mutually  exclusive.8 
Additional  matter  to  foot-note  5.9 

§  138.     Definition  of  labor  ' '  bestowed. ' ' 
Additional  matter  to  foot-note  7.10 

§  139.     Grading  and  other  work  under  £  1191.     Generally. 
Additional  matter  to  foot-note  10. n 

§  140.     Classes,  how  discussed  at  this  time.12 

§141.     "Improvement"  defined.     Refers  to  object. 
Additional  matter  to  foot-note  12.13 

§  142.  Structures,  and  grading  and  other  work,  under 
§  1101. 

7  California.  It  still  remains  important  to  fix  the  clause  under 
which  a  particular  case  falls,  for  some  purposes,  under  the  amend- 
ments to  the  lien  law  of  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

fi  California.  The  amendments  of  1911,  Stats.  &  Amdts.  1911,  pp. 
1313  et  seq.,  have  not  expressly  indicated  the  position  occupied  by 
structures  erected  in  mines  or  mining1  claims,  so  far  as  all  of  the 
provisions  of  the  statute  are  concerned. 

o  Idaho.     See  Shaw  v.  Johnston,   17  Idaho   676,   107  Pac.  Rep.   399. 

10  California.     Before   the  amendment  of   §  1183,   Code   of  Civ.   Proc. 
in   1911,  Stats.  &  Amdts.   1911,  pp.   1313   et  seq.,  one   furnishing   horses 
and  harness  to  the  contractor  did  not  "bestow"  labor,  under  the  cir- 
cumstances  of   the    case:     Wood,   Curtis   &   Co.    v.    El    Dorado   L.   Co., 
153   Cal.   230,   94    Pac.    Rep.   877,   distinguishing   Macomber   v.    Bigelow, 
126  Cal.   914,   58  Pac.   Rep.   312;   but  see   §  1183,  as  amended,  allowing 
liens  to  "teamsters  and  draymen." 

11  Idaho.     See  Shaw  v.  Johnston,  17  Idaho  676,  107  Pac.  Rep.  399. 

12  See  i§  61  et  seq.,  259  et  seq.,  269  et  seq.,  286  et  seq.  and  315  et  seq., 
this  Supplement. 

13  Arizona.     See   Schley   v.   Vail    (Ariz.),   95    Pac.   Rep.    113    (in   pre- 
ferred rights  to  leased  land). 

Federal.  "Improve,"  "build  or  rebuild":  See  Healey  I.  M.  Co.  V. 
Green  (C.  C.,  N.  C.),  181  Fed.  Rep.  890,  893. 

Idaho.     See  Shaw  v.  Johnston,  17  Idaho,  676,  107  Pac.  Rep.  399. 

Montana.  "Improvement,"  in  water  rights  law,  compare  Helena 
W.  Co.  v.  Settles,  37  Mont.  237,  95  Pac.  Rep.  838. 

Oklahoma.  "Improvement  of  land,"  see  Peaceable  Creek  C.  Co.  v. 
Jackson,  26  Okl.  1,  108  Pac.  Rep.  409. 

Oregon.  "Improvement,"  In  mining  laws  See  Fredericks  v.  Klauser, 
52  Oreg.  110,  96  Pac.  Rep.  679. 


69  LABOR  FOR  WHICH  A  LIEN  IS  GIVEN.       §|  142-145 

Additional  matter  to  foot-note  14. 14 

§  143.     Structures.     Liens  allowed. 

Additional  matter  to  foot-note  20. 15 
Additional  matter  to  foot-note  21. 16 

§  144.     ' '  Construction,  alteration,  addition  to,  or  repair. ' ' 

Additional  matter  to  foot-note  22. 17 

§  145.    Same.    Importance  of  determination.18 


14  Idaho.     See  Shaw  v.  Johnston,  17  Idaho  676,  107  Pac.  Rep.  399. 

is  California.  Class  of  persons  allowed  liens  upon  structures  was 
enlarged  by  amendment  of  §  1183,  Code  Civ.  Proc.,  Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.,  so  as  to  include  those  "bestowing  skill  or  other 
necessary  services." 

Idaho.  Naylor  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  789,  96  Pac. 
Rep.  573,  577,  s.  c.,  95  Pac.  Rep.  827. 

Oregon.  See  Durkheimer  v.  Copperopolis  C.  Co.  (Oreg.,  November 
15,  1909),  104  Pac.  Rep.  895,  explaining  Willamette  Falls  T.  &  M.  Co. 
v.  Remick,  1  Oreg.  169,  and  Cullins  v.  Flagstaff  S.  M.  Co.,  2  Utah'  219, 
affirmed  104  U.  S.  176,  26  L.  ed.  704. 

Washington.  Superintendent  of  structure  allowed  lien:  MacDon- 
ald  v.  O'Shea,  58  Wash.  169,  108  Pac.  Rep.  436,  439. 

16  California.  The  amendment  to  §1183,  Code  Civ.  Proc.,  Stats.  & 
Amdts.  1911,  pp.  1313  et  seq.,  specifically  provides  for  furnishing 
teams,  and  for  liens  for  teamsters  and  draymen. 

Oklahoma.  Lien  for  hauling;  stone  used  In  a  structure:  See  Al- 
berti  v.  Moore,  20  Okl.,  78,  93  Pac.  Rep.  543,  547. 

IT  California.  "Repair  and  alteration,"  compare  Grosse  v.  Barman, 
9  Cal.  App.  650,  100  Pac.  Rep.  348. 

"Constructed  and  being;  constructed,"  in  irrigation  law:  See  Stowell 
v:  Rialto  Irr.  Dist.,  155  Cal.  215,  100  Pac.  Rep.  248. 

"Construction"  work  on  ship:  See  Jensen  v.  Dorr  (Cal.  Sup.),  116 
Pac.  Rep.  553,  s.  c.,  157  Cal.  437,  108  Pac.  Rep.  320. 

"Construction"  in  public  utilities  ordinance:  See  Platt  v.  City  and 
County  of  San  Francisco  (Cal.  Sup.),  110  Pac.  Rep.  4,  11. 

Idaho.  "Repair  and  improve";  "new  construction";  definition:  See 
Nampa  v.  Nampa  &  M.  Irr.  Dist.  (Idaho),  115  Pac.  Rep.  979. 

Kansas.  See  Potter  v.  Conley  (Kan.,  January  7,  1911),  112  Pac. 
Rep.  608,  610. 

Oregon.  "Construction  and  repair  work":  See  Crane  Co.  v.  Ellis 
(Oreg.,  March  28,  1911),  114  Pac.  Rep.  475,  476. 

Washington.  "Construction,  alteration,  improvement  or  repair": 
See  Stetson  &  Post  L.  Co.  v.  W.  &  J.  Sloane  Co.  (Wash.,  December 
12,  1910),  112  Pac.  Rep.  248,  249,  250. 

is  See  "Material-man,"  §§77  to  103,  this  Supplement,  ante. 

California.  But  see  amendment  of  §  1183,  Code  Civ.  Proc.,  Stats.  & 
Amdts.  1911,  pp.  1313  et  seq. 


§§  146-149  MECHANICS'  LIENS— SUPPLEMENT.  7Q 

§  146.     Character  of  alteration. 
Additional  matter  to  foot-note  25.19 

§  147.    Distinction  between  ' '  alteration ' '  and  ' '  repair. ' '  20 
Additional  matter  to  foot-note  26.21 

§  148.     Same.     Alteration.    Erection. 
Additional  matter  to  foot-note  27. 22 

§  149.  Work  in  mines  and  mining  claims.  Second  clause. 
A  lien  is  not  given  for  any  and  every  work  that  may  be  done 
upon  or  about  a  mining  claim,  but  only  if  the  work  is  done 
in  the  development  thereof  or  .in  working  thereon  by  the 
subtractive  process,23  where  the  statute  so  provides. 

Additional  matter  to  foot-note  28.24 

Additional  matter  to  foot-note  29.25 

Additional  matter  to  foot-note  30.26 


10  See  I  44,  thus  Supplement,  ante. 

20  California.     "Repair    and    alteration":     Compare    Grosse    v.    Bar- 
man, 9  Cal.  App.  650,  100  Pac.  Rep.  348. 

"Repair"  defined  In  reclamation  law:  See  Reclamation  Dist.  v. 
Clark,  155  Cal.  1091,  100  Pac.  Rep.  1091. 

21  Structure   destroyed;   reconstruction,  whether  "alteration"  or  "re- 
pair," or  entirely  new  structure:     See  Pusey  v.  Pennsylvania  P.  Mills 
(C.  C.,  Pa.),  173  Fed.  Rep.   634,  640. 

22  "Improve,"    "build    or    rebuild":     See    Healey    I.    M.    Co.    v.    Green 
(C.  C.,  N.  C.),  181  Fed.  Rep.  890,  893. 

Reconstruction,  whether  alteration  or  repair,  or  new  structure: 
See  Pusey  v.  Pennsylvania  P.  Mills  (C.  C.,  Pa.),  173  Fed.  Rep.  634,  640. 

"Repair  and  Improve";  "new  construction":  See  City  of  Nampa  v. 
Nampa  &  M.  Irr.  Dist.  (Idaho),  115  Pac.  Rep.  979;  Morton  v.  Wessin- 
ger  (Oreg.,  February  14,  1911),  113  Pac.  Rep.  7. 

"Alteration,  Improvement,  repair":  See  Stetson  &  Post  L.  Co.  v. 
W.  &  J.  Sloane  Co.  (Wash.,  December  12,  1910),  112  Pac.  Rep.  248, 
249,  250. 

23  California.     Donaldson  v.  Orchard  C.  O.  Co.,  6  Cal.   App.   641,  645, 
92  Pac.  Rep.   1046. 

24  Oregon.     "Labor  upon  a  mine":     See  Durkheimer  v.  Copperopolis 
C.  Co.  (Oreg.,  November  15,  1909),  104  Pac.  Rep.  895,  897. 

New  Mexico.  Lien  allowed  for  actual  manual  labor  In  limestone 
quarry,  and  on  lime  kiln  In  mine:  Gray  v.  New  Mexico  P.  S.  Co. 
(N.  M.),  110  Pac.  Rep.  603,  604. 

25  Oregon.     See  Escott  v.  Crescent  C.  &  N.  Co.    (Oreg.,  January  25, 
1910),   106  Pac.  Rep.  452,  455. 

26  Blasting:,   lien   allowed:     James   v.    Beebe    (Wash.,    July    18,    1910), 
109  Pac.  Rep.  1032. 


71  LABOR  FOR  WHICH  A  LIEN  IS  GIVEN       §§  ^49^  ]  5Q 

Additional  matter  to  foot-note  31. 27 

§  150.     Same.     Liens  allowed. 

Additional  matter  to  foot-note  33. 28 

Additional  matter  to  foot-note  34.29 

Additional  matter  to  foot-note  35.30 

Additional  matter  to  foot-note  36. 31 

Additional  matter  to  foot-note  37.32 

27  Alaska.     See  Pioneer  M.  Co.  v.  Delamotte  (C.  C.  A.),  185  Fed.  Rep. 
752,    755. 

California.  Development  of  water:  See  Garvey  W.  Co.  v.  Hunt- 
ington  L.  &  I.  Co.,  154  Cal.  232,  97  Pac.  Rep.  428. 

Montana.  See  Mclntyre  v.  Montana  G.  M.  &  M.  Co.,  41  Mont.  87, 
108  Pac.  Rep.  357. 

New  Mexico.  Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  100  Pac.  Rep. 
603. 

28  Oregon.     Extracting:     ore     and     breaking;     ground,     lien     allowed: 
Washburn   v.    Intermountain   M.    Co.    (Oreg!,   June    28,    1910),    109    Pac. 
Rep.    382,    386. 

29  New    Mexico.      Superintendent    of    construction    of    mill    in    mine, 
lien    allowed:     Steams-Roger    Mfg.    Co.    v.    Aztec    G.    M.    &    M    Co., 
14  N.  M.   300,   93  Pac.  Rep.   706,   710,  distinguishing  New  Mexico  cases 
cited  in  Treatise  to  this  note. 

Overseeing;  laborers  with  whom  he  worked,  lien  allowed:  Gray  v. 
New  Mexico  P.  S.  Co.,  110  Pac.  Rep.  603,  604  (under  Comp.  L.  1897, 
§2221). 

Oregon.  Other-wise,  when  not  accompanied  by  manual  labor;  thus, 
superintendent  and  general  manager  of  a  mine  is  not  person  perform- 
ing labor  upon  a  mine  within  meaning  of  §5668,  B.  &  C.  Comp.,  as ' 
amended  by  Sess.  Laws  1907,  p.  294,  which  applies  only  to  those  per- 
forming physical  labor;  and  such  superintendent  has  no  lien:  Durk- 
heimer  v.  Copperopolis  C.  Co.  (Oreg.,  November  15,  1909),  104  Pac. 
Rep.  895.  See  also  Washburn  v.  Intermountain  M.  Co.  (Oreg.,  June 
28,  1910),  109  Pac.  Rep.  382,  386;  but  a  foreman  who  does  general 
work,  made  things,  framed  timbers,  and  looked  after  work  on  mine 
as  foreman,  and  took  part  in  the  erection  of  a  mill,  entitled  to  a  lien: 
Washburn  v.  Intermountain  M.  Co.,  supra. 

30  Montana.     Lien  allowed  for  repair  work  on  tunnel,  cutting  cord- 
wood  for  fuel;  for  construction   of  mill  and  in   operating  it;   building 
roadway  to  mill,  etc.:  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.   87, 
108  Pac.  Rep.   353,  357. 

31  Oklahoma.     Development    of    coal    mine,    "improvement    of    land," 
and  lien  now  allowed  under  Sess.  Laws   1909,   c.   23,  art  8,   §  1,  p.   886, 
for  development  labor,  and  also  for  taking  out  coal;  previously  lien 
not  allowed:     Peaceable  Creek  C.  Co.  v.  Jackson,  26  Okl.   1,   108  Pac. 
Rep.   409,   413. 

32  Kansas.      Lien    for    labor    in    discovery    and    obtaining    oil    from 
ground:     See    Phillips   v.    Springfield   C.    O.    Co.,    76   'Kan.    783,    92    Pac. 
Rep.   1119;   Martin  v.   Springfield  C.   O.  Co.,   77   Kan.   851,   92   Pac.   Rep. 
1119,   distinguishing  Eastern   O.   Co.   v.   McEvoy,   75    Kan.    515,    89   Pac. 
Rep.  1048. 


§§  150-157  MECHANICS'  LIENS — SUPPLEMENT.  72 

Additional  matter  to  foot-note  38.33 
Additional  matter  to  foot-note  39.34 

§  151.    Same.    Notice  of  non-responsibility.    Tunnel.35 
§  152.     Same.     Drifting.36 

i  153.     Same.     Running  tunnel. 
Additional  matter  to  foot-note  42.37 

§  154.     Same.     Shaft.     Mining  instrumentalities.38 

§  155.    Same.    Watchman  of  idle  mine. 
Additional  matter  to  foot-note  44.39 

§  156.    Grading,  etc.,  under  §  1191. 
Additional  matter  to  foot-note  45.40 
Additional  matter  to  foot-note  46. 41 
Additional  matter  to  foot-note  47. 42 

§  157.     Same.     Work  not  enforceable  under  this  section.43 

33  New  Mexico.     Gray  v.  New  Mexico  P.  S.  Co.,  110  Pac.  Rep.  603,  605. 

34  Montana.     "Repair    and    alteration    of     mine":     See    Mclntyre    v. 
Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac.  Rep.  353,  357. 

Oklahoma.  Compare  Peaceable  Creek  C.  Co.  v.  Jackson,  26  Okl.  1, 
108  Pac.  Rep.  409. 

35  See  Notice  of  non-responsibility,   §§  469   et  seq.,  this  Supplement, 
post. 

See    I  153,   matter  to   foot-note   of   Treatise   42. 
Tunnel:     See  §  150,  this  Supplement. 

36  See  matter  to  foot-note  42  of  Treatise,   §153,  this  Supplement. 

37  Washington.     Compare   Price   v.   Clallam   C.   Co.    (Wash.,   Novem- 
ber 30,  1910),  111  Pac.  Rep.  893. 

38  Montana.     See   Mclntyre   v.   Montana   G.   M.   M.   Co.,    41   Mont.    87, 
108  Pac.  Rep.  353,  357. 

so  California.  Donaldson  v.  Orchard  C.  O.  Co.,  6  Cal.  App.  641,  645, 
92  Pac.  Rep.  1046. 

\.-\i  Mexico.  Preparing;  mine  *<•  that  It  can  be  left  without  care- 
taker, oo  lien:  Gray  v.  New  Mexico  P.  S.  Co.,  110  Pac.  Rep.  603,  604. 

40  California.     Definition    of   "grading":       See    Hill    v.    Clark,    7    Cal. 
App.   609.   612,  95  Pac.  Rep.  382. 

41  California.     Compare  McQuiddy  v.  Worswlck  S.  P.  Co.    (Cal.  Sup., 
May    26,    1911),   116   Pac.   Rep.    67. 

42  California.     See  Hill  v.  Clark,  7  Cal.  App.  609,  95  Pac.  Rep.  382. 

43  California.     |  1191,  Code  Civ.  Proc.,   was  not  amended  in   1911. 


73  LABOR  FOR  WHICH  A  LIEN  IS  GIVEN.      SS  158-162 

§158.      Same.     Meaning     of     "improves,"      "improve- 
ment."44 

Additional  matter  to  foot-note  51. 45 

§  159.     Same.    Relation  to  work  on  structures.46 

§  160.    Same.    Liens  allowed. 
Additional  matter  to  foot-note  53. 47 
Additional  matter  to  foot-note  54.48 
Additional  matter  to  foot-note  56. 49 

§  161.    Labor  for  which  lien  is  not  given  in  any  event. 
Additional  matter  to  foot-note  58. 50 

§  162.     Same.     Preliminary  work. 
Additional  matter  to  foot-note  59.51 
Additional  matter  to  foot-note  60.52 


44  See  notes  §  141,   this  Supplement. 

"Improvement  of  land,"  compare  Peaceable  Creek  C.  Co.  v.  Jackson, 
26  Okl.,  1,  108  Pac.  Rep.  409. 

"Improve,"  "build  or  rebuild,"  see  Healey  I.  M.  Co.  v.  Green  (C.  C., 
N.  C.),  181  Fed.  Rep.  890,  893. 

"Repair  and  Improve,"  compare  City  of  Nampa  v.  Nampa  &  M.  Irr. 
Dist.  (Idaho,  May  13,  1911),  115  Pac.  Rep.  979. 

45  Idaho.     Rules    regarding    ownership    of    sidewalks    by    owner    of 
abutting    property    in    support    of    lien    on    abutting    property:     See 
Shaw  v.  Johnston,   17  Idaho   676,   107  Pac.  Rep.   399. 

46  California.     §  1191,  Code  Civ.  Proc.,  was  not  amended  in  1911. 

47  Washington.      Grading   and   filling  in   street    in   front   of   property, 
lien  allowed:     Hall  v.  Cowen,  51  Wash.  295,   98  Pac.  Rep.   670. 

48  Definition  of  "block":     See  Slater  v.  Fire  &  P.  Board,  43  Colo.  225, 
96   Pac.   Rep.   554;   Town   of  Fruita  v.   Williams,   33   Colo.    157,    80   Pac. 
Rep.  132;  Harrison  v.  People,  195  111.  466,  63  N.  E.  Rep.  191. 

49  Idaho.     Shaw  v.  Johnston,  17  Idaho  676,   107  Pac.  Rep.  399    (under 
§§  5510,   5512,  Rev.  Codes). 

See  §  158,  this  Supplement,  ante. 

50  Oregon.     Superintendence:       See    Washburn    v.    Intermountain    M. 
Co.    (Oreg.,  June  28,  1910),   109  Pac.  Rep.  382,  386. 

See   §§  162-165,  this  Supplement,  post. 

51  Idaho.     Lien  allowed  for  general  railroad  construction,  shoveling, 
blasting,    clearing    sagebrush    from    railroad    right   of   way,    and   com- 
pensation for  use  of  tools:     Naylor  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14 
Idaho,  789,  96  Pac.  Rep.  573,  95  Pac.  Rep.  827. 

52  California.     Roustabout   and   well   cleaner   on   mine:      See   Donald- 
son v.  Orchard  C.  O.  Co.,  6  Cal.  App.  641,  645,  92  Pac.  Rep.  1046. 

New  Mexico.  Taking  care  of  horses  for  owner  of  mine:  Gray  V. 
New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep.  603,  604. 


§§  163-165  MECHANICS'  LIENS — SUPPLEMENT.  74 

§  163.     Same.     Teaming  for  material-man. 
Additional  matter  to  foot-note  61. 53 

§  164.    Same.    Material-man's  laborer.54 

§  165.  Same.  Test,  legitimate  connection  with  work  of 
mine. 

Additional  matter  to  foot-note  64.55 

Oregon.  Persons  working  In  a  boarding  house  or  cooking  for  em- 
ployers at  mine  have  no  lien  under  §  5668,  B.  &  C.  Comp.,  since  amend- 
ment of  1907;  before  that  amendment,  lien  was  allowed:  Durkheimer 
v.  Copperopolis  C.  Co.  (Oreg.,  November  15,  1909),  104  Pac.  Rep.  895, 
898. 

Washington.  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  101  Pac.  Rep. 
869.  102  Pac.  Rep.  766. 

53  California.     See  Wood  Curtis  &  Co.  v.  El  Dorado  L.  Co.,  153  Cal. 
230,  94  Pac.   Rep.   877. 

See  §  1183,  Code  Civ.  Proc.,  as  amended  1911,  Stats.  &  Amdts.  1911, 
pp.  1313  et  seq. 

54  See  §  46,  this  Supplement,  ante.  , 

55  Montana.     See   Mclntyre   v.   Montana   G.   M.   M.   Co.,    41   Mont.    87, 
108  Pac.  Rep.  353,  357. 

New  Mexleo.  Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep. 
603.  604. 

But  see  §  150,  this  Supplement,  ante. 


75  ON  WHAT  LABOR  MUST  BE  DONE.  §§  166-171 


CHAPTER  X. 
OBJECT  ON  WHICH  LABOR  MUST  BE  PERFORMED. 

§166.    Distinction  between  "object"  and  "property.1 

Additional  matter  to  foot-note  I.1 
Additional  matter  to  foot-note  2.2 

§  167.     Constitutional  provision.3 

§  168.     Division  of  the  statute. 
Additional  matter  to  foot-note  5.4 

§  169.     Statutory  provisions. 
Additional  matter  to  foot-note  6.5 

§  170.    Definition  of  terms  used  herein.6 

§171.     Same.     "Improvement."     "Structure." 

Additional  matter  to  foot-note  10.7 
Additional  matter  to  foot-note  II.8 


1  Colorado.     Right   to   use   water   for   irrigation,   real   estate:      Davis 
v.  Randall,   44  Colo.   488,   99   Pac.   Rep.   322,   324. 

Montana.      Definition   of  "property":      See   Helena  W.    Co.   v.    Settles, 
37  Mont.   237,  95  Pac.  Rep.   838. 

2  California.     Mining   claim   on   public   land,   property:     Van   Ness   V. 
Rooney   (Cal.  Sup.,  June  6,   1911),   116  Pac.  Rep.   392,  394. 

3  See  §§  28-41,  this  Supplement,  ante. 

4  California.     The    general    division    of    objects    remains    the    same 
under    the   amendment    of   the    mechanics'    lien    law   of    1911,    Stats.    & 
Amdts.  1911,  pp.  1313  et  seq.     See  §§  134  et  seq.,  this  Supplement,  ante. 

5  California.     The    objects    under    the    first    and    second    clauses    of 
§  1183,   Code   of  Civ.  Proc.,  as  amended  in   1911,  Stats.   &  Amdts.   1911, 
pp.   1313  et  seq.,  have  not  been  changed,  with   reference   to  structures 
and  mines  and  mining  claims;  and  §  1191,  with  reference  to  grading, 
etc.,  remains  the  same. 

6  See    §  166,  this   Supplement,   ante. 

7  Oregon.     Compare  Alderson  v.  Lee,   52  Oreg.   92,   96   Pac.   Rep.   234, 
236. 

Washington.     Compare   State  v.   Puget  Sound   &   G.   H.   Ry.   Co.,    103 
Pac.   Rep.  80. 

8  Arizona.     Definition    of    "improvements":     See    Schley    v.    Vail,    95 
Pac.  Rep.   113. 


§§  172-177  MECHANICS'  LIENS— SUPPLEMENT.  75 

§  172.    Structure  on  a  mine.    Oil  well. 
Additional  matter  to  foot-note  14.9 

§173.    "Structures,"  in  general.    First  clause  of  statute. 
Additional  matter  to  foot-note  15. 10 

§  174.    Structures  not  enumerated  in  statute.11 

§  175.    Structures  enumerated  in  statute.    Buildings. 
Additional  matter  to  foot-note  20. 12 

§  176.    Same.    Bridges. 

Additional  matter  to  foot-note  29. 13 

§  177.    Same.    Aqueduct,  ditch  and  flume. 
Additional  matter  to  foot-note  31. 14 


Montana.  Definition  of  "Improvements":  See  Helena  W.  Co.  v. 
Settles,  37  Mont.  237,  95  Pac.  Rep.  838. 

Oklahoma.  "Improvement  of  Iand"i  Peaceable  Creek  C.  Co.  v. 
Jackson,  26  Okl.  1,  108  Pac.  Rep.  409.  See  Bates  v.  Harte,  124  Ala.  427. 
26  South.  Rep.  898,  82  Am.  St.  Rep.  186. 

See  §  172,  this  Supplement,  post. 

9  Oregon.     Compare  Alderson  v.  Lee,  52  Oreg.  92,  96  Pac.  Rep.   234, 
236;  Fredericks  v.  Klauser,  52  Greg.  110,  96  Pac.  Rep.  679. 

10  Idaho.     "Other   structure*"   In   mine;   "other   Improvements,  afore- 
said":    See  Shaw  v.  Johnston,  17  Idaho  676,  107  Pac.  Rep.  399. 

Oregon.     Compare  Alderson  v.  Lee,  52  Oreg.  992,  96  Pac.  Rep.  234,  236. 

11  Colorado.     Definition  of  embankment  and  dam:     See  Garnet  D.  & 
R.  Co.  v.  Sampson,  110  Pac.  Rep.  79,  83. 

12  Kansas.     Definition  of  "building":     State  v.  Landers,  81  Kan.  836, 
106  Pac.  Rep.  1029. 

Oregon.  "Frame  building"  In  San  Francisco  ordinance;  held 
synonymous  with  wooden  building:  Morton  v.  Wessinger  (Oreg.,  Feb- 
ruary 14,  1911),  113  Pac.  Rep.  7.  See  Ward  v.  City  of  Murphysboro, 
77  111.  App.  549. 

Washington.  "Building"  not  Including  basement  in  building  ordi- 
nance: See  Davis  v.  City  of  Walla  Walla,  52  Wash.  453,  100  Pac. 
Rep.  981,  982. 

is  California.  See  §  2712,  Pol.  Code,  relating  to  repair  and  mainte- 
nance of  bridges,  amended  Stats.  &  Amdts.  1911,  c.  82. 

"Wharf":  See  Bankers  T.  Co.  V.  T.  A.  Gillespie  Co.  (C.  C.  A.),  181 
Fed.  Rep.  448. 

14  Colorado.  Lien  on  ditch:  Hottel  v.  Poudre  Valley  R.  Co.,  41 
Colo.  370,  92  Pac.  Rep.  918. 

Idaho.  "Canal,"  lien  on:  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W. 
Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  92  Pac.  Rep.  980. 

Conduit,  not  strictly  ditch  or  canal:  See  Idaho  P.  &  T.  Co.  v. 
Stephenson,  16  Idaho  418,  101  Pac.  Rep.  821,  824. 


77  ON  WHAT  LABOR  MUST  BE  DONE.  §§  178-182 

§  178.    Same.    Well. 

Additional  matter  to  foot-note  32. 15 

§  179.     Same.     Tunnel. 

Additional  matter  to  foot-note  35. 16 

§  180.     Same.    Machinery. 
Additional  matter  to  foot-note  37. 17 
Additional  matter  to  foot-note  38. 18 

§  181.    Same.    Railroad. 

Additional  matter  to  foot-note  39. 19 

§  182.  Mining  claims,  and  real  property  worked  as  a  mine. 
Second  clause  of  statute. 

Additional  matter  to  foot-note  41. 20 
Additional  matter  to  foot-note  42.21 

Oregon.  Locks  of  canal,  highway:  See  State  v.  Portland  G.  E.  Co., 
52  Oreg.  502,  95  Pac.  Rep.  722,  728,  729. 

is  See    §  172,    this    Supplement,    wells    as    mining    claims. 

Montana.  "Cistern":  See  Neuman  v.  Grant,  36  Mont.  77,  92  Pac. 
Rep.  43. 

See   Tunnel,   §  179,   this   Supplement,   post. 

16  California.  Tunnel  "practically  horizontal  well":  Garvey  W. 
Co.  v.  Huntington,  154  Cal.  232,  241,  97  Pac.  Rep.  428. 

Montana.  Lien  for  repairing  tunnel:  Mclntyre-v.  Montana  G.  M. 
Co.,  41  Mont.  87,  108  Pac.  Rep.  353,  357. 

Washington.  Compare  Price  v.  Clallam  C.  Co.  (Wash.,  November 
30,  1910),  111  Pac.  Rep.  898. 

IT  California.  Definition  of  "machine":  See  Korander  v.  Penn.  B. 
Co.  (Cal.  App.,  May  11,  1911),  116  Pac.  Rep.  384;  Stearns  v.  Russell,, 
85  Fed.  Rep.  225,  29  C.  C.  A.  121. 

Gas  generators:  See  Lacy  M.  Co.  v.  Los  Angeles  G.  &  E.  Co.,  12  CaT. 
App.  37,  106  Pac.  Rep.  413. 

is  Kansas.     See  Hathaway  v.  Davis,   32  Kan.   693,   5  Pac.  Rep.   29. 

Oklahoma.     See  Jarrell  v.  Block,   19  Okl.   467,  92  Pac.  Rep.   167,   169. 

Washington.  Laundry  plant:  Cornelius  v.  Washington  S.  L.,  52 
Wash.  272,  100  Pac.  Rep.  727. 

Sawmill  and  wood-working  plant:  Compare  Zimmermann-  v.  Bosse 
(Wash.,  November  23,  1910),  111  Pac.  Rep.  796. 

19  Colorado.     Lien   allowed  for  construction   of  railroad:      Barnes  v. 
Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo.  461,  94  Pac.  Rep.  57«,  573. 

Federal.     See  Brooks  v.  Railroad,  101  U.  S.  443,  25  L.  ed.  1057. 
Idaho.     See  Naylor  v.  Lewiston  &  S.  E.  Ry.  Co.,  14  Idaho  789,  96  Pac. 
Rep.    573,    s.   c.   95   Pac.   Rep.    827. 

20  Oregon.     See   Escott  v.   Crescent   C.    &  N.   Co.    (Oreg.,  January   25, 
1910),  106  Pac.  Rep.  452,  454. 

21  Idaho.     See  Salisbury  v.  Lane  7  Idaho  370,  63  Pac.   Rep.   383. 


§§  182-184  MECHANICS'  LIENS— SUPPLEMENT. 

Additional  matter  to  foot-note  43. 22 
Additional  matter  to  foot-note  44.23 
Additional  matter  to  foot-note  46.24 
Additional  matter  to  foot-note  47. 25 

§  183.     Definition  of  ' '  mine. ' ' 
Additional  matter  to  foot-note  48. 26 

§  184.     Grading  and  street-work  under  code  provision. 
Additional  matter  to  foot-note  49. 27 
Additional  matter  to  foot-note  52.28 


New  Mexico.  See  Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac. 
Rep.  603.  606. 

Oregon.  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  January  25,  1910), 
106  Pac.  Rep.  452,  454. 

22  California.     Right    of   possession   of   land   for    mining   oils      Com- 
pare Graclosa  O.  Co.  v.   Santa   Barbara  County,   155  Cal.   140,  99  Pac. 
Rep.  483,  486. 

Idaho.  See  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14 
Idaho  5,  93  Pac.  Rep.  789,  792,  92  Pac.  Rep.  980. 

Oregon.  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  January  25,  1910), 
106  Pac.  Rep.  452,  454. 

23  Oregon.     See  Escott  v.  Crescent  C.  &  N.  Co.    (Oreg.,  January   25, 
1910),  106  Pac.  Rep.  452,  454. 

24  New  Mexico.     See  Gray  v.  New  Mexico  P.  S.  Co.   (N.  M.),  110  Pac. 
Rep.    603,    606. 

Oregon.  See  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  January  25, 
1910),  106  Pac.  Rep.  452,  454. 

25  Oregon.     See  Escott  v.  Crescent  C.  &  N.  Co.,  supra. 

26  Montana.     Definition    of    "mine"!     Smith    v.    Sherman    M.    Co.,    12 
Mont.  524,  31  Pac.  Rep.   72. 

Oregon.  Definition  of  "mine,"  "coal  mine,"  "mining  claim,"  and 
"mining":  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.,  January  25,  1910), 
106  Pac.  Rep.  452,  454. 

Utah.  See  Nephi  P.  &  M.  Co.  v.  Juab  County,  33  Utah  114,  93  Pac. 
Rep.  535. 

27  California.     Definition  of  street:     See  Williams   v.   San   Francisco 
&  N.  W.  Co.,  6  Cal.  App.  715,  93  Pac.  Rep.  122;  Marini  v.  Graham,   67 
Cal.   130,   7   Pac.  Rep.  442. 

Colorado.  Board  of  Public  Works  v.  Hayden,  13  Colo.  App.  36, 
56  Pac.  Rep.  201. 

Oregon.  Heiple  v.  City  of  East  Portland,  13  Oreg.  97,  8  Pac.  Rep. 
907. 

Utah.     Davidson  v.  Utah  I.  T.  Co.,  34  Utah  249,  97  Pac.  Rep.  124,  125. 

Washington.  "Lot":  See  City  of  Seattle  v.  Seattle  E.  Co.  (Wash.), 
94  Pac.  Rep.  194. 

Sidewalk*;  rules  an  to  ownership:  See  Shaw  v.  Johnston,  17  Idaho 
676,  107  Pac.  Rep.  399. 

28  Kansas.     See  Smith  v.  Chicago  L.  &  C.  Co.   (Kan.,  March  fl,  1911), 
114  Pac.  Rep.  372,  374. 


79  ON  WHAT  LABOR  MUST  BE  DONE.  *8  ]'85-189 

§  185.     Fixtures.    In  general. 
Additional  matter  to  foot-note  54.29 

§  186.    Same.     Question  of  fact.    Building. 

Additional  matter  to  foot-note  55. 30 

§  187.    Same.    Principles  of  determination.31 
Additional  matter  to  foot-note  57.32 
Additional  matter  to  foot-note  58.33 

§  188.     Lien  primarily  on  structure. 
Additional  matter  to  foot-note  61. 34 

§  189.     Work  upon  fixtures,  how  deemed. 

Additional  matter  to  foot-note  62. 35 


29  Fixtures,  generally,  see  note  to  Reynolds  v.  Ashby,  1  Brit.  Rul. 
Cases  1,  11. 

Electric  wiring  and  fixtures:.  See  Rowen  v.  Alladio,  51  Oreg.  121, 
93  Pac.  Rep.  929. 

so  California.  Cells  in  jail  as  fixtures:  See  Sarver  v.  Los  Angeles 
County,  156  Cal.  187,  103  Pac.  Rep.  917. 

Colorado.  Building  as  fixture:  See  Hughes  v.  Kershow,  42  Colo. 
210,  93  Pac.  Rep.  1116. 

Oklahoma.  Lien  does  not  attacli  to  an  improvement  separate  and 
apart  from  some  interest  of  the  owner  in  the  realty  whereon  it  is 
situated:  'Keel  v.  Ingersoll  (Okl.,  September  13,  1910),  111  Pac.  Rep. 
214.  See  §§  15,  45,  95,  this  Supplement,  ante. 

Washington.  See  Welch  v.  McDonald  (Wash.,  July  11,  1911),  116 
Pac.  Rep.  589. 

si  Washington.  General  principles  as  to  fixtures i  American  R.  Co. 
v.  Pendleton  (Wash.,  February  2,  1911),  112  Pac.  Rep.  1117;  Stetson  & 
Post  L.  Co.  v.  W.  &  J.  Sloane  Co.  (Wash.,  December  12,  1910),  112  Pac. 
Rep.  248,  249,  250;  Filley  v.  Christopher,  39  Wash.  22,  80  Pac.  Rep.  834, 
109  Am.  St.  Rep.  853;  Gasaway  v.  Thomas,  56  Wash.  77,  105  Pac.  Rep. 
168,  170. 

32  Oregon.     Washburn    v.    Intermountain    M.    Co.     (Oreg.,    June    28, 
1910),   109   Pac.   Rep.   382,   384. 

Wyoming.  Fixtures  as  between  mortgagor  and  mortgagee:  See 
Anderson  v.  Englehart  (Wyo.,  June  2,  1910),  108  Pac.  Rep.  977. 

33  Oregon.     Washburn    v.    Intermountain    M.    Co.     (Oreg.,    June    28, 
1910),   109  Pac.  Rep.   382,   384. 

34  Oklahoma.     No  Hen  on  fixture  as  personalty:     See  Keel  v.  Inger- 
soll   (Okl.,   September   13,    1910),   111    Pac.   Rep.   214. 

See  §  189,  this  Supplement,  post. 

35  No  Hen  on  personal  property: 

Kansas.     See  Hathaway  v.  Davis,  32  Kan.  693,  5  Pac.  Rep.  29. 
Missouri.     Armstrong    Cork    Co.    v.    Merchants    R.    Co.     (C.    C.    A.), 
171  Fed.  Rep.  778. 


§§  190-192  MECHANICS'   LIENS — SUPPLEMENT.  QO 

§  190.     The  severance  of  buildings  from  the  freehold. 
Additional  matter  to  foot-note  64.30 
Additional  matter  to  foot-note  65.37 

§  191.    Work  on  fixtures  in  mine.38 
Additional  matter  to  foot-note  66. 30 

$  192.    Public  property. 

Additional  matter  to  foot-note  68.40 

Additional  matter  to  foot-note  69.41 

Oklahoma.  See  Jarrell  v.  Block,  19  Okl.  467,  92  Pac.  Rep.  167,  169; 
Block  v.  Pearson,  19  Okl.  422;  Keel  v.  Ingersoll  (Okl.,  September  18, 
1910).  Ill  Pac.  Rep.  214. 

36  See   if  188  and   189,   this   Supplement,  ante. 

Montana.  House  as  movable  fixture:  Compare  Eisenhauer  v. 
Quinn,  36  Mont.  368.  93  Pac.  Rep.  38. 

Missouri.  See  Armstrong  Cork  Co.  v.  Merchants  R.  Co.  (C.  C.  A.), 
184  Fed.  Rep.  199,  207;  s.  c.  (C.  C.,  Mo.),  171  Fed.  Rep.  778. 

\\iiHiiiiiKiim.  See  Welch  v.  McDonald  (Wash.,  July  11,  1911),  116 
Pac.  Rep.  589. 

37  Oklahoma.     See    Jarrell    v.    Block,    19    Okl.    467,    92    Pac.    Rep.    167, 
169;   Keel   v.   Ingersoll    (Okl.,  September  13,   1910),   111   Pac.  Rep.   214. 

38  California.     Mining:    machinery    ax    fixtures    on    a    mine,    as    be- 
tween  vendor  and   vendee:     Conde   v.   Sweeney    (Cal.   App.,  August   4, 
1910),  110  Pac.  Rep.  973;  B.  c.,  116  Pac.  Rep.  319. 

.'!'.»  Montana.  Machine  and  tools  us  fixture*  on  mlnei  See  Brlt- 
tanla  M.  Co.  v.  United  States  F.  &  Q.  Co.  (Mont.,  March  22,  1911), 
115  Pac.  Rep.  46. 

Nevada.  Compare  Arnold  v.  Goldfield  T.  C.  M.  Co.  (Nev.,  July  1, 
1910),  109  Pac.  Rep.  718. 

Oregon.  See  Washburn  v.  Intermountaln  M.  Co.  (Oreg.,  June  28, 
1910),  109  Pac.  Rep.  382,  385. 

Utah.  See  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah,  June  12, 
1909),  103  Pac.  Rep.  254,  259. 

40  See  |  564,   this  Supplement,  post. 
Public   property   generally: 

California.  Public  improvements  by  day  work  under  Stats.  A 
\nniis.  1001,  p.  30i  See  Perry  v.  City  of  Los  Angeles  (Cal.  Sup.), 
108  Pac.  Rep.  410;  Fox  v.  Hubbard,  108  Pac.  Rep.  413. 

Bond  Act  of  1897  (Stats.  &  Amdts.  1897,  p.  201):  See  Goldtree  v. 
City  of  San  Diego,  8  Cal.  App.  505,  509,  97  Pac.  Rep.  216;  s.  c.,  8  Cal. 
App.  512,  97  Pac.  Rep. '21 8. 

Colorado.  Contractor's  bond  on  public  work:  See  State  Board  of 
Agriculture  V.  Dlmick.  46  Colo.  609,  105  Pac.  Rep.  1114,  1115. 

Oregon.  Locks  of  canal  as  part  of  public  highway.  See  State  v. 
Portland  G.  E.  Co.,  52  Oreg.  502,  95  Pac.  Rep.  722,  72*.  729. 

Washington.  Contractor's  bond  on  public  work:  See  Fransioll  v. 
Thompson,  55  Wash.  259,  104  Pac.  Rep.  278,  280;  Cascade  L.  Co.  v. 
Aetna  I.  Co..  56  Wash.  503,  106  Pac.  Rep.  160;  Huggins  v.  Sutherland. 
39  Wash.  552,  82  Pac.  Rep.  112. 

41  California.     Goldtree  v.  City  of  San  Diego,   8   Cal.   App.   505,   510, 
97  Pac.  Rep.  216;  s.  c..  8  Cal.  App.  512,  97  Pac.  Rep.  218. 


gl  ON  WHAT  LABOR  MUST  BE   DONE. 

Additional  matter  to  foot-note  70. 42 

Additional  matter  to  foot-note  72.43 

Additional  matter  to  foot-note  73.44 

Additional  matter  to  foot-note  76. 45 

42  Idaho.     Rathbun  v.  State,  15  Idaho  273,  97  Pac.  Rep.   335,  337. 
Kansas.     See  Seitz  v.  Union  Pac.  Ry.  Co.,  16  Kan.  133;  Hathaway  v. 

Davis,  32  Kan.  693,  5  Pac.  Rep.  29;  Chicago  L.  Co.  v.  Osborn,  40  Kan. 
168,  19  Pac.  Rep.  656;  Mulvane  v.  Chicago  L.  Co.,  56  Kan.  675,  44  Pac. 
Rep.  613. 

Oklahoma.  Block  v.  Pearson,  19  Okl.,  422,  91  Pac.  Rep.  714.  See 
Jarrell  v.  Block,  19  Okl.  467,  92  Pac.  Rep.  167,  168. 

43  Colorado.     No    mechanic's    lien    on    public    property:      State    Board 
of  Agriculture  v.  Dimick,   46  Colo.   609,   105  Pac.  Rep.   1114. 

Idaho.  No  Hen  on  state  property:  Rathbun  v.  State,  15  Idaho  273, 
97  Pac.  Rep.  335,  336.  See  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W. 
Co.  14  Idaho  5,  93  Pac.  Rep.  789,  791,  92  Pac.  Rep.  980. 

Oregon.  As  a  general  rule  the  property  of  a  quasi-public  corpora- 
tion, affected  with  a  public  use  and  necessary  to  the  performance 
thereof,  is  not  subject  to  a  mechanic's  lien;  there  is  a  difference  as 
to  what  constitutes  a  quasi-public  corporation,  and  as  to  when  the 
property  of  such  corporation  is  affected  by  a  public  use:  Benbow  v. 
The  James  Johns  (Oreg.,  May  10,  1910),  108  Pac.  Rep.  634,  636  (lien 
on  boat);  and  see  Hill  v.  La  Crosse  &  M.  R.  R.  Co.,  11  Wis.  215;  but  if 
the  lien  has  attached  to  the  property  before  it  is  acquired  by  the 
public  the  lien  remains:  Benbow  v.  The  James  Johns,  supra;  and 
see  City  of  Salem  v.  Lane  &  Bodley  Co.,  90  111.  App.  560,  affirming 
189  111.,  594,  60  N.  E.  Rep.  37,  87  Am.  St.  Rep.  481. 

44  California.     Goldtree   v.    City   of   San   Diego,    8   Cal.   App.    505,   510, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.   512,  97  Pac.  Rep.   218. 

Kansas.  But  see,  contra,  Home  L.  &  S.  Co.  v.  School  Dist.  (Kan., 
May  6,  1911),  115  Pac.  Rep.  590  (whether  lien  could  be  foreclosed 
upon  public  property  was  not  discussed  in  opinion). 

North  Carolina.  See  Hardware  Co.  v.  Graded  School,  150  N.  C.  680; 
s.  c.,  151  N.  C.  507. 

Oklahoma.  Compare  McCarthy  v.  Cain,  (Okl.,  August  23,  1910),  110 
Pac.  Rep.  653. 

45  Idaho.     Compare  Rathbun  v.  State,  15  Idaho  273,  97  Pac.  Rep.  335, 
337. 

Bloom's  Sup. — 6 


§§  193-198  MECHANICS'  LIENS— SUPPLEMENT.  32 


CHAPTER  XI. 
BUILDING  CONTRACTS.     GENERAL  PRINCIPLES. 

$  193.     General  principles  applicable.1 

§  194.    Term  "original  contract"  not  used  in  the  statute. 
Additional  matter  to  foot-note  3.2 

§  195.    Essentials  of  contract.     How  treated  herein. 
Additional  matter  to  foot-note  7.3 

55196.    Definition  of  "contract." 
Additional  matter  to  foot-note  9.4 

§  197.     Definition  of  "building  contract."  5 

§  198.    Parties  to  contract.    Competency. 
Additional  matter  to  foot-note  II.6 


1  As  to  public  contracts,  see  Si  201a,  201b  and  201c,  this  Supplement, 
post. 

2  California.     The  amendment  of  S  1183,  Code  Civ.   Proc.   of  May   1, 
1911,  Stats.  &  Aimlts.  1911,  p.  1313,  uses  the  expression  "original  con- 
tract." 

3  Oregon.     See  absence  of  contractual   relation   with   owner  by   rea- 
son   of   unauthorized   contract   made    by    Its   architect:     Lltherland    v. 
S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.   71,  100  Pac.  Rep.   1,   100  Pac. 
Rep.  303. 

4  Lawful   object  i 

California.  Illegal  construction  of  building1  not  rendering  lease 
void:  See  Wayman  Inv.  Co.  v.  Wessinger  (Cal.  App.),  108  Pac.  Rep. 
1022. 

Invalid  provision  In  contract  for  employment  of  unnatnrallxed 
cltl>enat  City  S.  I.  Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  Rep.  933,  941. 

IlleKal   public  contract*,  Mining-  competition: 

California.     See  City  S.   I.   Co.  v.   Kroh,  supra. 

Kaunas.  National  S.  Co.  v.  Wyandotte  C.  &  L.  Co.,  76  Kan.  914, 
92  Pac.  Rep.  1111:  s.  c.,  sub  nom.  Atkln  v.  Wyandotte  C.  &  L.  Co. 
73  Kan.  768,  84  Pac.  Rep.  1040. 

See   5  201a,  Public   corporations,  this  Supplement,   post. 

s  See  "Nature  of  Labor,"  55130-165,  and  "Object  of  Labor,"  Si  166- 
192  this  Supplement,  ante. 

e  See  {  201a  this  Supplement,  post,  as  to  public  contracts. 


g3  BUILDING  CONTRACTS.  SS  199_2Q1 

§  199.     Same.     Guardian  of  minor. 
Additional  matter  to  foot-note  13. 7 

§  200.  Same.  Executor.  Executors  and  administrators 
may  make  expenditures  to  preserve  the  property  of  the  es- 
tate,8 as  by  putting  in  place  the  lumber  of  an  uncompleted 
structure;9  yet,  upon  the  executor's  refusal  to  do  so,  the 
devisee  who  places  the  lumber  in  situ  with  full  knowl- 
edge of  the  facts  is  deemed  to  have  done  it  voluntarily,  and 
can  not  recover  the  amount  from  the  estate.  The  proper 
course  for  the  devisee  is  to  apply  to  the  court  for  an  order 
requiring  the  executor  to  make  such  expenditures  as  are 
necessary  to  preserve  the  property. 

Executors  have  no  right  to  expend  funds  of  the  estate  in 
doing  new  work  which  the  testator  himself  is  not  bound  to 
do;  as  where  he  was  constructing  a  house  by  day  labor,  and 
there  are  no  uncompleted  original  contracts,  or  where  the 
executor  erects  a  new  building  upon  the  property  of  the  es- 
tate.10 If  a  lot  with  a  house  in  course  of  erection  is  devised 
under  a  will,  it  is  not  indicated  by  that  fact  alone  that  the 
house  should  be  brought  to  the  point  of  completion  by  the 
personal  representatives  of  the  deceased.11 

§  201.     Same.     Corporations.12 

7  Compare  powers   of   executors  and  administrators,    §  200    this   Sup- 
plement, post. 

California.  Los  Angeles  County  v.  Winans,  13  Cal.  App.  234,  109 
Pac.  Rep.  640,  649;  s.  c.,  109  Pac.  Rep.  650. 

8  In    re   Hincheon's  Estate    (Cal.   Sup.,   May   16,    1911),    116   Pac.   Rep. 
47,  50;   In  re  Close,   110   Cal.   494,   42  Pac.  Rep.   971;   Byrd  v.   Governor, 
2  Mo.  102.     See  Gray  v.  Hawkins,  8  Ohio  St.  449,   77  Am.  Dec.  600. 

9  California.      In    re    Hincheon's    Estate    (Cal.    Sup.,    May    16,    1911), 
116    Pac.    Rep.    47,    50. 

10  California.      In    re    Hincheon's    Estate,    supra.      See    In    re    Moore, 
72   Cal.   335,   13   Pac.   Rep.    880. 

11  California.     In  re  Hincheon's  Estate,  supra. 

12  Foreign    corporations;    compliance    with    state    laws;    see    various 
lin.es   of  authorities: 

Idaho.  Valley  L.  Co.  v.  Driessel,  13  Idaho  662,  93  Pac.  Rep.  765, 
770;  Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac.  Rep. 
24,  25.  See  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho 
5,  93  Pac.  Rep.  789,  800;  s.  c.,  92  Pac.  Rep.  980. 

New  Mexico.  Foreign  corporation  as  claimant:  See  Steams-Roger 
Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14  N.  M.  300,  93  Pac.  Rep.  706. 


§§  201,  201a       MECHANICS'  LIENS — SUPPLEMENT.  g^ 

Additional  matter  to  foot-note  17. 13 

§  201a.     Same.     Public   corporations.14     It   is   a   general 
principle  of  law  applying  to  the  letting  of  contracts  for  pub- 
Apparent  authority  of  officer* 

California.  See  Eells  v.  Gray  Bros.  C.  R.  Co.,  13  Cal.  App.  33,  108 
Pac.  Rep.  735  (secretary;  estoppel  of  corporation). 

Idaho.  See  Valley  L.  Co.  v.  McGllvery,  16  Idaho  338,  101  Pac. 
Rep.  94. 

Kantian.  Officer's  acts  prohibited  by  by-laws  can  not  be  ratified  i 
Hoffman  v.  Farmers'  Co-op.  S.  Assoc.,  78  Kan.  561,  97  Pac.  Rep. 
440,  443. 

Authority  of  president  of  corporation:  Harding  v.  Oregon-Idaho  Co. 
(Oreg.),  110  Pac.  Rep.  412,  415.  See  Wait  v.  Nashua  A.  Assoc.,  66 
N.  H.  581,  23  Atl.  Rep.  77,  14  L.  R.  A.  356,  4  Am.  St.  Rep.  630;  Lundon 
M.  Co.  v.  Lyndon  L.  I.,  63  Vt.  581,  22  Atl.  Rep.  575,  25  Am.  St.  Rep. 
783;  Derr  v.  Fisher,  22  Okl.  126,  98  Pac.  Rep.  978. 

13  See  |  446,  this  Supplement,  post. 

Oregon.  Director  of  corporation  as  claimant;  knowledge  of  presi- 
dent and  secretary,  not  imputable  to  him:  Compare  Washburn  v. 
Inter-Mountain  M.  Co.  (Oreg.,  June  28,  1910),  109  Pac.  Rep.  382,  385. 

Washington.  Corporation  an  claimant:  See  Pacific  I.  &  S.  Works 
v.  Goerig,  55  Wash.  149,  104  Pac.  Rep.  151. 

14  Signing   of  contract    by   proper   officer: 

Idaho.  Signing  of  contract  of  municipality  by  mayor  of  a  city, 
held  insufficient  without  authorization  or  ratification:  Woodward  v. 
City  of  Grangerville,  13  Idaho  652,  92  Pac.  Rep.  840. 

Washington.  See  Griffin  v.  City  of  Tacoma,  49  Wash.  524,  95  Pac. 
Rep.  1107. 

California.  Contracts  for  furnishings:  See  Sarver  v.  Los  Angeles 
County,  156  Cal.  187,  103  Pac.  Rep.  917,  distinguishing  Erble  v.  Leary, 
114  Cal.  238,  46  Pac.  Rep.  1. 

Washington.  Recovery  of  contractor  on  contract  violating  statute: 
Green  v.  Okanogan  County  (Wash.,  October  12,  1910),  111  Pac.  Rep. 
226. 

Powers    of    public    corporations: 

California.  Passage  of  resolution  and  posting  notice  inviting  bids, 
preliminary  to  public  contract:  See  Gay  v.  Engebretson,  158  Cal.  21, 
109  Pac.  Rep.  877;  s.  c.,  sub  nom.  Engebretson  v.  Gay,  158  Cal.  27, 
30,  109  Pac.  Rep.  879,  880. 

Idaho.  Powers  of  Boise  City  as  to  construction  of  sewers  under 
charter,  Laws  1907,  p.  57:  Boise  City  N.  B.  v.  Boise  City,  15  Idaho 
792,  100  Pac.  Rep.  93. 

Kansas.  Power  of  municipality  to  do  street  work:  See  Barnes  v. 
City  of  Parsons,  77  Kan.  311,  94  Pac.  Rep.  151. 

Power  of  township  to  construct  bridges:  See  Rossville  Tp.,  Shaw- 
nee  County  v.  Alma  N.  Bank,  78  Kan.  773,  98  Pac.  Rep.  234. 

Oklahoma:  Contract  for  filtration  plant  exceeding  estimates  of 
cost  of  engineer,  void,  under  statute:  Bowles  v.  Neely  (April  14, 
1911),  115  Pac.  Rep.  345. 

Oregon.  Power  to  provide  water  system,  not  legislative  but  pro- 
prietary: Tone  v.  Tillamook  City  (Oreg.,  April  11,  1911),  114  Pac. 
Rep.  838,  840.  See  Esberg  C.  Co.  v.  Portland,  34  Oreg.  282,  55  Pac. 
Rep.  961,  43  L.  R.  A.  435,  75  Am.  St.  Rep.  651. 


85  BUILDING  CONTRACTS.  §§201a,  201b 

lie  work  to  the  lowest  bidder,  upon  plans  and  specifications 
previously  adopted,  that  they  must  be  sufficiently  certain  and 
definite,  upon  all  the  details  of  the  work  which  materially 
affect  its  cost,  to  apprise  bidders  of  all  the  essential  and  sub- 
stantial parts  of  the  work  and  enable  them  to  know  with 
reasonable  accuracy  the  outlay  they  will  have  to  make  in 
performing  the  work  to  be  contracted  for.  This  is  thor- 
oughly established  in  the  case  of  public  improvements  of 
streets,  where  the  cost  is  raised  by  assessment  upon  the 
property  owners  within  the  district  specially  benefited  there- 
by.15 

§  201b.  Same.  The  reason  for  the  rule,  as  applied  to 
such  work,  is  in  part  because  such  uncertainty  deprives  the 
property  owners  of  the  knowledge  necessary  to  enable  them 
to  undertake  the  work  themselves,  as  the  statute  provides 
they  may,  and  in  part  because  it  deprives  bidders  of  like 
knowledge,  and  thereby  tends  to  prevent  the  fair  competi- 
tion and  resulting  low  cost  of  the  work,  which  is  the  prin- 
cipal object  of  the  provision.  The  latter  reason  is  as  per- 
suasive as  the  first,  it  is  sufficient  to  support  the  rule,  and 
it  applies  as  well  where  the  cost  is  to  be  paid  with  money 
already  raised  by  taxation  or  by  the  sale  of  bonds,  as  where 
it  is  to  be  raised  after  the  work  is  done  by  assessment  upon 
the  benefitted  property.16 

Washington.      Delegation    of   power   of   town   council   to   committee: 

See  Woldenberg  v.   Sampson,   55  Wash.    152,    104   Pac.   Rep.   184. 

is  City  S.  I.  Co.  v.  Kroh  (Cal.,  September  2,  1910),  110  Pac.  Rep.  933, 
937,  citing  the  following  cases:  Piedmont  P.  Co.  v.  Allman,  136  Cal. 
89,  68  Pac.  Rep.  493;  California  I.  Co.  v.  Reynolds,  123  Cal.  92,  55 
Pac.  Rep.  802;  Grant  v.  Barber,  135  Cal.  191,  67  Pac.  Rep.  127;  Stans- 
bury  v.  White,  121  Cal.  437,  53  Pac.  Rep.  940;  Chase  v.  Scheerer,  136 
Cal.  251,  66  Pac.  Rep.  768;  Ferine  v.  Pasadena,  116  Cal.  9,  47  Pac. 
Rep.  777;  Warren  v.  Chandos,  115  Cal.  385,  47  Pac.  Rep.  132. 

16  City  S.  I.  Co.  v.  Kroh  (Cal.,  September  2,  1910),  110  Pac.  Rep.  933, 
937  See  Santa  Cruz  etc.  Co.  v.  Broderick,  113  Cal.  631,  45  Pac.  Rep.  863; 
Ertie  v.  Leary,  114  Cal.  241,  46  Pac.  Rep.  1;  American  C.  Co.  v.  Lick- 
ing Co.,  31  Ohio  St.  415;  Detroit  v.  Hosmer,  79  Mich.,  388,  44  N.  W. 
Rep.  622;  Fones  Bros.  Co.  v.  Erb,  54  Ark.  645,  17  S.  W.  Rep.  7,  13 
L.  R.  A.  353;  Andrews  v.  Board,  7  Idaho  457,  63  Pac.  Rep.  592;  Gage 
v.  New  York,  110  App.  Div.  403,  97  N.  Y.  Supp.  157;  McBrian  v. 
Grand  Rapids,  56  Mich.  99,  22  N.  W.  Rep.  206. 

Of  the  provisions  objected  to  in  the  case  first  cited,  "the  following 
come  within  this  class  and  do  not  invalidate  the  contract:  The  con- 


§  201b  MECHANICS'  LIENS — SUPPLEMENT.  gg 

Where  the  property  owners  consent  to  an  improvement  and 
the  issuance  of  bonds  therefor,  the  proceeding  is  not  strictly 
in  invitum,  and  the  Bxtreme  strictness  of  construction  against 
the  validity  of  contracts  made  under  such  circumstances  is 
not  required.17 

If  a  taxpayer  endeavors  to  enjoin  the  letting  of  the  con- 
tract, on  the  ground  that  a  limitation  of  the  specifications 
is  void  and  that  it  tends  to  discourage  bidders  and  make  the 
work  more  expensive,  possibly  the  suit  may  be  maintained, 

tractor  must  grade  the  connections  with  intersecting  roads  to  the 
satisfaction  of  the  engineer  employed  by  the  commission.  He  was 
allowed  to  take  water  from  the  county  wells  and  tanks  along  the 
road,  but,  if  that  was  insufficient,  he  was  required  to  obtain  the 
necessary  quantity  from  other  sources  at  his  own  expense.  A  method 
of  mixing  the  asphaltic  cement  was  recommended,  but  any  other 
method  was  permitted,  provided  it  would  result  in  coating  every 
particle  of  the  stone,  sand  and  dust  with  the  asphaltic  cement.  If 
compelled  to  cease  work  temporarily,  the  contractor  was  required 
to  leave  in  a  passable  condition  during  the  winter  the  part  of  the 
road  upon  which  he  had  worked.  The  statute  limits  the  width  of 
the  roadway  made  with  these  funds  to  16  feet.  Public  roads  must 
be  at  least  40  feet  wide.  The  sole  purpose  of  this  clause  is  to  secure 
a  way  for  public  travel,  and  it  would  be  substantially  complied  with 
if  the  portion  of  the  public  road  not  occupied  by  the  pavement  was 
made  fit  for  that  purpose.  During  the  progress  of  the  work  he  must 
maintain  a  roadway  for  traffic,  either  alongside  the  pavement  on 
the  highway,  or  on  private  land  adjoining,  'unless  in  the  judgment 
of  the  engineer  it  is  a  physical  impossibility  to  do  so.'  Soft  material 
encountered  was  to  be  removed  as  directed  by  the  engineer.  The 
earth  for  the  embankments  and  shoulders  was  to  be  of  a  quality 
satisfactory  to  the  engineer.  All  of  these  provisions  come  within 
the  exception  above  stated.  They  do  not  make  the  contract  void. 
*  *  *  If  soft  spots  developed  under  rolling  they  were  to  be  ex- 
cavated to  a  depth  of  two  feet,  and  then  filled  with  clean  dry  earth 
or  gravel.  The  foundation  was  to  be  of  gravel  wherever  directed 
by  the  engineer,  and  was  to  be  not  less  than  three  inches  thick  after 
compacting,  or  thicker,  -if  so  directed  by  the  engineer.  The  pro- 
visions for  extra  work  in  excavating  the  soft  spots  which  might  be 
developed  when  the  heavy  roller  was  applied  come  within  the  rule 
regarding  unforeseen  contingencies,  declared  in  Haughawout  v.  Hub- 
bard  and  other  similar  cases  above  cited.  The  specification  that  the 
engineer  should  decide  where  the  gravel  foundation  should  be  laid 
and  its  thickness  is  not  objectionable,  since  by  the  contract  the  con- 
tractor is  to  be  paid  for  laying  such  foundation  at  a  fixed  price  per 
ton  for  the  amount  of  gravel  used  therein.  The  decision  of  the 
engineer  could  not  injuriously  affect  him."  City  S.  I.  Co.  v.  Kroh 
(Cal.,  September  2,  1910),  110  Pac.  Rep.  933,  937,  938  (other  similar 
points  considered). 

IT  City  S.  I.  Co.  v.  Kroh  (Cal.  Sup.,  September  2,  1910),  110  Pac.  Rep. 
933,  938.  See  this  case  for  a  number  of  other  points  decided  relative 
to  the  law  of  public  contracts  for  highway,  and  issuance  of  bonds 
therefor. 


g7  BUILDING  CONTRACTS.  8  201b 

or  it  may  be  that  in  a  proceeding  in  invitum,  when  a  stricter 
rule  prevails,  where  the  consent  of  the  taxpayer  has  not 
been  previously  obtained  and  the  money  is  yet  to  be  raised 
from  them  by  assessment,  such  a  clause  in  the  specifications 
will  be  fatal  to  the  validity  of  the  contract;  but  where  the 
contract  has  been  let,  the  work  involved  in  the  demand  has 
been  performed  under  it  in  good  faith,  and  the  people  have 
voted  the  bonds  and  the  money  has  been  realized  therefrom, 
and  no  facts  are  shown  to  indicate  that  this  clause  had  any 
effect  whatever  upon  the  bids,  or  concern  the  character  of 
the  improvement  to  be  made,  but  was  collateral  thereto, 
the  rule  is  otherwise.18 


18  In  People  v.  Featherstonhaugh,  172  N.  Y.  112,  64  N.  E.  Rep.  802, 
60  L.  R.  A.  768,  where  a  similar  case  was  presented,  the  court  held 
that  the  contractor  must  be  presumed  to  have  known  that  the  clause 
in  the  specifications  was  void,  and  to  have  made  his  bid  with  that 
understanding,  and  that  he  was  entitled  to  payment  under  the  con- 
tract, notwithstanding  such  invalid  clause  in  the  specifications  and 
contract.  It  appeared  in  that  case  that  the  courts  had  previously 
decided  that  the  provision  was  void  and  that  this  was  actually 
known  to  the  successful  bidder.  But  the  court  distinctly  declares 
that  the  rule  would  be  the  same  in  the  absence  of  such  decision. 

In  People  v.  Coler,  166  N.  Y.  1,  59  N.  E.  Rep.  716,  52  L.  R.  A.  814, 
82  Am.  St.  Rep.  605,  a  similar  clause  in  the  contract  was  held  to  be 
invalid.  But  it  was  further  held  that  the  contract  was  not  void,  and 
that,  when  such  a  contract  has  been  made  and  has  been  performed 
by  the  contractor,  the  fact  that  he  has  violated  the  invalid  provision 
is  no  defense  to  an  action,  by  him  to  enforce  payment  of  the  contract 
price.  The  same  conclusion  was  declared  in  Chicago  v.  Hulbert,  205 
111.  363,  68  N.  E.  Rep.  786;  Marshall  v.  Nashville,  109  Tenn.  513,  71 
S.  W.  Rep.  815;  Cleveland  v.  Clements,  67  Ohio  St.  197,  65  N.  E.  Rep. 
885,  59  L.  R.  A.  775,  93  Am.  St.  Rep.  670. 

"In  Inge  v.  Board,  135  Ala.  202,  33  South.  Rep.  678,  93  Am.  St.  Rep. 
20,  the  work  had  not  been  performed,  and  the  suit  was  instituted 
by  taxpayers  to  restrain  its  performance.  It  was  an  ordinary  street 
improvement  proceeding.  There  was  a  similar  clause  in  the  specifi- 
cations, and  it  was  held  that  this  prevented  fair  bidding  and  made 
the  contract  void.  The  point  that  it  should  be  presumed  to  have 
been  disregarded  was  not  raised  or  considered.  We  think  that  the 
cases  first  cited  above  apply  the  better  rule  to  be  followed  here. 
The  void  provision  did  not  in  any  respect  concern  or  affect  the  char- 
acter of  the  improvement  to  be  made,  but  was  wholly  collateral 
thereto.  The  case  does  not  come  within  the  scope  of  the  rule  that 
public  corporations  are  not  estopped  by  benefits  received  from  the 
actual  performance  of  an  ultra  vires  contract,  as  in  Zottman  v.  San 
Francisco,  20  Cal.  96,  81  Am.  Dec.  96,  and  the  numerous  cases  follow- 
ing the  rule  there  stated.  The  presumption  being  that  the  parties 
all  disregarded  the  collateral  and  invalid  specification  and  there 
being  nothing  tending  to  prove  or  to  indicate  the  contrary,  the  con- 
clusion logically  follows  that,  so  far  as  this  point  is  concerned,  the 


§§  201C    202       MECHANICS'  LIENS — SUPPLEMENT.  gg 

§  201c.  Same.  Exception.  There  is  a  well-recognized 
exception  to  the  rule  first  stated,  in  the  case  of  details  of 
construction  which  do  not  appear  and  can  not  with  reason- 
able diligence  and' cost  be  ascertained  in  advance,  or  which 
will  be  disclosed  only  by  the  doing  of  the  work,  or  any  con- 
tingency which  reasonable  care  and  consideration  would  not 
foresee.  Such  things  may  occur  in  every  work  of  any  con- 
siderable magnitude,  and  they  must  be  left  to  be  adjusted  in 
accordance  with  general  provisions  of  the  contract,  or  by 
the  discretion  of  the  person  or  board  supervising  its  per- 
formance. Examples  of  such  details,  and  of  lawful  provi- 
sions for  their  determination,  were  considered  in  the  cases 
hereafter  cited.19 

§  202.  Same.  Owner.  Contract  not  binding,  contractor's 
lien  fails.  Implied  contract. 

Additional  matter  to  foot-note  18.20 
Additional  matter  to  foot-note  19. 21 


contract  was  properly  awarded  and  lawfully  made":  City  S.  I.  Co. 
v.  Kroh  (Cal.,  September  2,  1910),  110  Pac.  Rep.  933,  941,  942. 

California.  Specifications  as  to  public  safeguards,  In  street  Im- 
provement contract,  not  increasing  obligation  of  contractor:  See 
Schindler  v.  Young  (Cal.  App.),  108  Pac.  Rep.  733. 

Examples  of  matters  restricting  competitive  bidding  and  avoiding 
contract  t 

California.  Stansbury  v.  Poindexter,  154  Cal.  709,  99  Pac.  Rep.  182; 
Blochman  v.  Spreckles,  135  Cal.  664,  67  Pac.  Rep.  1061,  57  L.  R.  A. 
213;  Clouse  v.  City  of  San  Diego  (Cal.  Sup.,  March  8,  1911),  114  Pac. 
Rep.  573,  575. 

Kansas.  National  S.  Co.  v.  Wyandotte  C.  &  L.  Co.,  76  'Kan.  914,  92 
Pac.  Rep.  1111;  s.  c.,  sub.  nom.  Atkin  v.  Wyandotte  C.  &  L.  Co.,  73 
Kan.  768,  84  Pac.  Rep.  1040. 

Oklahoma.  Citizens  N.  Bank  v.  Mitchell  (Okl.,  July  13,  1909),  103 
Pac.  Rep.  720.  See  McMullen  v.  Hoffman,  174  U.  S.  644,  670,  19  Sup. 
Ct.  841,  83  L.  ed.  1117. 

10  City  S.  I.  Co.  v.  Kroh  (Cal.,  September  2,  1910),  110  Pac.  Rep. 
933.  937,  citing:  Haughawout  v.  Hubbard,  131  Cal.  679,  63  Pac.  Rep. 
1078;  Belser  v.  Allan,  134  Cal.  400,  66  Pac.  Rep.  492;  Banaz  v.  Smith, 
133  Cal.  106,  65  Pac.  Rep.  309;  Haughawout  v.  Raymond,  148  Cal.  311, 
83  Pac.  Rep.  53;  Chase  v.  Scheerer,  136  Cal.  251,  66  Pac.  Rep.  768; 
McCaleb  v.  Dreyfus,  156  Cal.  204,  103  Pac.  Rep.  924. 

20  Oregon.     Litherland  v.   S.   Morton   Cohn  R.  E.   &  I.  Co.,  54  Oreg. 
71,   100  Pac.  Rep.   1,   102  Pac.  Rep.  303. 

21  Oregon.     See  Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  supra. 


gg  BUILDING  CONTRACTS.  §§  203-207 

.     §  203.    Same.     Owner. 

Additional  matter  to  foot-note  20.22 

§  204.    Same.    Owner.    Street-work. 
Additional  matter  to  foot-note  25.23 

§  205.     Contract  made  with  reference  to  statute. 
Additional  matter  to  foot-note  27.24 

§  206.     Consent. 

Additional  matter  to  foot-note  28. 25 

Additional  matter  to  foot-note  33. 26 

§  207.     Same.     Fraud.     Mistake. 
Additional  matter  to  foot-note  31. 27 


22  Oregon.     See  law  of  privity:   Litherland  v.   S.  Morton  Cohn  R.   B. 
&  I.  Co.,   54  Oreg.   71,  100  Pac.  Rep.   1,   102  Pac.  Rep.   303. 

See  Crane  Co.  v.  Erie  H.  Co.  (Oreg.,  December  20,  1910),  112  Pac. 
Rep.  340  for  full  statement  and  authorities  as  to  the  necessity  of 
authority  from  the  owner,  expressly,  impliedly  or  by  way  of  estoppel, 
for  the  construction  of  the  improvement;  "all  authority  to  bind  the 
owner  *  *  *  must  emanate  from  the  original  contract,  which 
becomes  the  foundation  law  for  the  government  of  all  sub-contracts, 
as  they  must  be  created  undey  it  and  by  virtue  of  the  contractor's 
authority  obtained  through  it. 

23  California.     §  1191   Code  Civ.   Proc.   was  not   amended  by  Stats.   & 
Amdts.    1911,    p.    1313. 

24  Washington.      Compare    Leidendecker    v.    Aetna    I.    Co.,    52    Wash. 
609,   101   Pac.   Rep.    219. 

25  California.      As   to   meeting;   of   minds   regarding   extras:     See   City 
S.    I.    Co.   v.    Kroh    (Cal.    Sup.,    September    2,    1910),    110    Pac.    Rep.    933, 
940,    941. 

Idaho.  See  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac. 
Rep.  82,  83. 

26  Idaho.     See  Nave  v.  McGrane  (Idaho,  December  20,  1910),  113  Pac. 
Rep.   82,    83. 

27  Unilateral   mistake: 

Idaho.     See  Tatum  v.  Coast  L.  Co.,  16  Idaho  471,  101  Pac.  Rep.   957. 

Illinois.  See  Sternmeyer  v.  Schroeppel,  226  111.  9,  80  N.  E.  Rep.  564, 
117  Am.  St.  Rep.  224,  10  L.  R.  A.  (N.  S.),  114. 

As  to   exclusion   of  certain   material  to  be   furnished  by  contractor: 

Oregon.  See  Mclnnis  v.  Buchanon,  53  Oreg.  229,  99  Pac.  Rep. 
929,  931. 

Fraud;  statute  providing  no  school  district  trustee  should  be  inter- 
ested in  contract;  contract  void:  Independence  School  Dist.  v.  Collins 
(Idaho,  December  8,  1908),  98  Pac.  Rep.  857. 


28  208-215  MECHANICS'  LIENS — SUPPLEMENT.  g0 

§  208.     Same.     Indefiniteness  of  contract.    False  reference 
to  plans  and  specifications. 

Additional  matter  to  foot-note  34.28 

§  209.    Consideration. 

Additional  matter  to  foot-note  38.29 

§  210.    Ratification. 

Additional  matter  to  foot-note  42.3(> 

§  211.    Definition  of  ' '  original  contract. ' ' 
Additional  matter  to  foot-note  46.31 

§  212.    Same.     Owner,  laborer  and  material-man. 
Additional  matter  to  foot-note  47. 32 

§  213.    Same.    Subcontractor's  contract. 
Add  to  end  of  paragraph  "where  the  statute  requires  such 
record." 

Additional  matter  to  foot-note  48. 33 

§214.    Same.    Definition  of  "statutory  original  contracts" 
and  "non-statutory  original  contracts." 
Additional  matter  to  foot-note  50.34 

215.     Same.     Contract  for  street-work. 

Additional  matter  to  foot-note  51. 35 


28  See   §§  119   et  seq.,  Architect,  this  Supplement,  ante. 

29  Kansas.     See  Pittsburgh  V.  P.  &  B.  B.  Co.  v.  Cerebus  O.  Co.,  .79 
Kan.   603,  100  Pac.  Rep.  631. 

\ViiMliliiKt<>n.  See  Evans  v.  Oregon  &  W.  R.  Co.,  58  Wash.,  429, 
108  Pac.  Rep.  5,  7. 

so  See  §  26,  this  Supplement,  ante. 

si  California.  See  §  1183  Code  Civ.  Proc.,  as  amended  May  1,  1911, 
Stats.  &  Amdts.  1911,  p.  1313. 

32  See  "Owner,"  generally,   §§  508  et  seq.,  this  Supplement,  post. 

33  See  §§  66-76,   this  Supplement,  ante. 

34  California.     The  amendment  of  May   1,    1911,   to   §  1183  Code  Civ. 
Proc.,  Stats.   &  Amdts.   1911,  p.   1313,  abolishes  the  statutory  original 
contract. 

35  California.     §  1191  Code  Civ.  Proc.  was  not  changed  by  the  amend- 
ments of  May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 


CONTRACTS— CONSTRUCTION.  SS  216-219 


CHAPTER  XII. 

BUILDING    CONTRACTS    (CONTINUED).     CONSTRUCTION    OF 
SAME.     IN   GENERAL. 

§  216.     Construction  of  building  contracts. 

Additional  matter  to  foot-note  I.1 

§  216a.     Contract   as   personal  obligation   of  contractor. 

The  contractor's  obligation  to  construct  by  entering  into  a 
building  contract  is  not  personal  unless  the  contrary  inten- 
tion appears;  and  ordinarily  a  construction  contract  is  bind- 
ing upon  his  personal  representatives.2 

§  217.    Several  contracts  relating  to  same  matters. 
Additional  matter  to  foot-note  3.3 

§  218.     Ambiguity  or  uncertainty  in  contract. 
Additional  matter  to  foot-note  4.4 

§  219.     Particular  clauses.     General  intent. 

Additional  matter  to  foot-note  8.5 


1  California.      Construction  of  contract  as  to  powers  of  engineer,  so 
as  to  make  contract  lawful:     See  City  S.  I.  Co.  v.  Kroh,   158  Cal.   308, 
110  Pac.  Rep.  933,  938. 

New  Mexico.  "Modern  $30,000  theatre  building"  in  contract,  con- 
strued: Neher  v.  Viviani  (N.  M.,  August  10,  1910),  110  Pac.  Rep. 
695,  697. 

2  MacDonald  v.   O'Shea,   58   Wash.    169,    108   Pac.    Rep.    436.      See   Bil- 
ling's Appeal,   106  Pa.   558,  560;   Dickenson  v.  Calahan's  Admr.,   19   Pa. 
227.      And    see    exhaustive    notes    in    21    L.    R.    A.    (N.    S.),    915    and    68 
Am.  Dec.   760.     See,  also  §  200  this  Supplement,  ante. 

3  Utah.     Compare  Ryan  v.  Curlew  I.   &  R.  Co.    (Utah,   September  16, 
1909),   104  Pac.  Rep.  218,  220. 

*  Idaho.  Contract  silent  as  to  amount  of  excavation;  yardage:  See 
Whiteway  v.  State  (Idaho,  February  13,  1911),  113  Pac.  Rep.  98,  101. 

As  to  character  of  construction,  etc.:  See  Sanders  v.  'Keller  (Idaho, 
October  4,  1910),  111  Pac.  Rep.  350. 

5  Colorado.  Contract  considered  as  a  whole:  Town  of  Sterling  v. 
Kurd,  44  Colo.  436,  98  Pac.  Rep.  174,  176. 


§§  220-224  MECHANICS'  LIENS— SUPPLEMENT.  Q2 

§  220.     Entire  and  severable  contracts. 
Additional  matter  to  foot-note  10.° 
Additional  matter  to  foot-note  11. T 

§  221.     Dependent  and  independent  promises.8 

§  222.    Joint  and  several  contracts. 
Additional  matter  to  foot-note  17.9 

§  223.     Contract  explained  by  circumstances.10 

§  224.    Reasonable  stipulations,  when  implied. 
Additional  matter  to  foot-note  21. ll 


6  Apportionment    of   price   to   each    Item: 

California.  Rockwell  v.  Light,  6  Cal.  App.  563,  565,  92  Pac.  Rep. 
649.  See  Generally  Los  Angeles  G.  &  E.  Co.  v.  Amalgamated  O.  Co., 
156.  Cal.  776,  106  Pac.  Rep.  55. 

Kansas.  See  Bailey  v.  Fredonia  G.  Co.,  82  Kan.  746,  109  Pac. 
Rep.  411. 

General  rule  as  to  single  contract :  See  Tonopah  L.  Co.  v.  Nevada 
A.  Co.,  30  Nev.  445,  97  Pac.  Rep.  636,  638.  See  Miller  v.  Batchelder, 
117  Mass.  179;  Union  Trust  Co.  v.  Casserly,  127  Mich.  183,  86  N.  W. 
Rep.  545. 

7  Kansas.     Contract  to  drill  five  wells,  held  to  be  severable:   Bailey 
v.  Fredonia  G.   Co.,   82   Kan.    746,  109   Pac.   Rep.   411.     See   59   Am.   St. 
Rep.   279,  note;  and  20  L.  R.  A.    (N.  S.),  1069,  note. 

8  See  §§  220  and  222  Treatise  and  Supplement. 

o  Washington.  See  Bailey  M.  Works  v.  Miller  (Wash.,  August  8, 
1910),  110  Pac.  Rep.  422,  423. 

10  As   to   liability   of  owner  for   delay  by  act   of  otber  original   con- 
tractors    See    Goss   v.   Northern    Pacific    H.    Assoc.,    50   Wash.    236,    96 
Pac.   Rep.   1078. 

By  conduct  of  parties]  See  City  S.  I.  Co.  v.  Marysville,  155  Cal. 
419,  101  Pac.  Rep.  308. 

As  to  term  "primings":  Rockwell  v.  Light,  6  Cal.  App.  563,  92  Pac. 
Rep.  649. 

Uncertainty  as  to  character  of  construction:  Sanders  v.  Keller 
(Idaho,  October  4,  1910),  111  Pac.  Rep.  350. 

Time  of  essence  of  contract:  See  Standard  L.  Co.  v.  Miller  &  Vidor 
L.  Co.,  21  Okl.  617,  96  Pac.  Rep.  761,  765. 

As  to  estoppel:  Minnetonka  O.  Co.  v.  Cleveland  V.  B.  Co.  (Okl., 
September  13,  1910),  111  Pac.  Rep.  326. 

Presenting  bill:  See  James  v.  Beebe  (Wash.,  July  18,  1910),  109 
Pac.  Rep.  1032,  1033. 

11  An  to  Implied  agreement  of  contractor  and  owner  to  remove  earth 
falling   on   property:      See   Carlson   v.    Sheehan,    157    Cal.    692,    697,    109 
Pac.   Rep.   29. 

Usage:  See  Puritos  L.  Co.  v.  Green  (Cal.  App.,  March  21,  1911), 
115  Pac.  Rep.  660. 


CONTRACTS — CONSTRUCTION.  22  224-227 

Additional  matter  to  foot-note  22. 12 

§  225.     Same.    Time  of  performance  unspecified. 
Additional  matter  to  foot-note  25. 13 
Additional  matter  to  foot-note  27. 14 

§  226.    Warranty. 

Additional  matter  to  foot-note  29. 15 

§  227.     Construction  of  statutory  original  contracts. 
Additional  matter  to  foot-note  30. 16 


No  implied  covenant  that  building  is  to  continue  in  existence:  Wat- 
son v.  Alta  I.  Co.,  12  Cal.  App.  560,  565,  108  Pac.  Rep.  48;  s.  c.,  12  Cal. 
App.  566,  108  Pac.  Rep.  50. 

Implied  agreement  of  contractor  to  pay  bills  under  agreement  to 
furnish  materials  and  labor:  Covey  v.  Schiesswohl  (Colo.,  March  6, 
1911),  114  Pac.  Rep.  292. 

Measurement  of  material  before  being  placed  in  situ:  McKivor 
v.  Savage  (Wash.,  September  19,  1910),  110  Pac.  Rep.  811,  813. 

Reasonable  value  of  work:  Holm  v.  Chicago  M.  &  P.  S.  Ry.  Co. 
(Wash.,  July  7,  1910),  109  Pac.  Rep.  799,  800. 

As  to  contracts  where  promisee  is  to  be  "satisfied":  See  Midgley 
v.  Campbell  B.  Co.  (Utah,  January  4,  1911),  112  Pac.  Rep.  820,  824,  825. 

12  "Good  and  workmanlike  manner"  construed:  See  Holland  v. 
Rhoades  (Oreg.,  February  8,  1910),  106  Pac.  Rep.  779. 

is  New  Mexico.  Cowles  v.  Hagerman  (N.  M.,  August  29,  1910),  110 
Pac.  Rep.  843;  s.  c.,  14  N.  M.  422,  94  Pac.  Rep.  946.  See  Neher  v. 
Viviani  (N.  M.,  August  14,  1910),  110  Pac.  Rep.  695. 

Washington.  Berlin  M.  Works  v.  Miller  (Wash.,  August  8,  1910), 
110  Pac.  Rep.  422,  424. 

14  New  Mexico.  Neher  v.  Viviani  (N.  M.,  August  10,  1910),  110  Pac. 
Rep.  695,  697;  Hagerman  v.  Cowles,  14  N.  M.  422,  94  Pac.  Rep.  946; 
s.  c.,  110  Pac.  Rep.  843. 

is  Warranty  as  to  machine:  See  International  P.  Co.  v.  Caney  I. 
&  C.  S.  Co.  ('Kan.,  May  6,  1911),  115  Pac.  Rep.  635;  Berlin  M.  Works 
v.  Miller  (Wash.),  110  Pac.  Rep.  422,  424. 

Warranty  as  to  efficiency  of  heating  plant:  See  Yundt  v.  Schlutz- 
Degginger  Co.  (Wash.,  March  3,  1911),  113  Pac.  Rep.  760. 

Warranty  as  to  railroad  crossing:  See  demons  v.  Gray's  Harbor 
&  P.  S.  Ry.  Co.  (Wash.,  April  7,  1911),  114  Pac.  Rep.  865. 

Warranty,  generally:  See  Hale  v.  Van  Buren  &  M.  Co.  (Okl.),  103 
Pac.  Rep.  1026. 

16  California.  The  Statutory  Original  Contract  was  abolished  by 
Amendment  of  May  1,  1911,  to  §  1183,  Code  Civ.  Proc.  (Stats,  and 
Amdts.  1911,  pp.  1313  et  seq.).  See  §§  258,  269,  274,  281,  288  and  328, 
this  Supplement,  ante. 


§  228  MECHANICS'  LIENS — SUPPLEMENT.  94 

§  228.    Instances  of  construction  of  contracts. 
Additional  matter  to  foot-note  33. 17 


IT  Construction  of  contract  for  development  of  water:  See  Garvey 
W.  Co.  v.  Huntingdon  L.  &  I.  Co.,  164  Cal.  232,  97  Pac.  Rep.  428.  Con- 
struction of  contract  as  to  grading:  See  Hill  v.  Clark,  7  Cal.  App. 
609,  612,  95  Pac.  Rep.  382. 

ConBtructlon  of  contract  for  erection  of  theatre  building:  See 
Neher  v.  Vivian!  (N.  M.,  August  10,  1910),  110  Pac.  Rep.  695,  698. 


95  CONTRACTS — COMMON  CLAUSES.  SR  229-232 


CHAPTER  XIII. 

BUILDING  CONTRACTS  (CONTINUED).  COMMON  CLAUSES 
PECULIAR  TO  BUILDING  CONTRACTS.  IN  GENERAL. 

§  229.     Scope  of  chapter.1 

§  230.    Arbitration  clause.    California. 
Additional  matter  to  foot-note  2.2 
Additional  matter  to  foot-note  3.3 

§  231.  Same.  Agreement  to  arbitrate  not  final.  The 
object  of  arbitration  is  to  put  an  end  to  litigation,  and  it  is 
essential  to  the  validity  of  the  award  that  it  should  be  final 
and  conclusively  determine  the  matters  submitted  to  the 
arbitrators,  thus  leaving  nothing  to  be  done  but  to  execute 
and  carry  out  the  terms  of  the  award.  This  is  true  both  at 
the  common  law  and  under  the  code.4 

Additional  matter  to  foot-note  5.5 

§  232.     Same.    When  procuring  award  condition  precedent. 
Additional  matter  to  foot-note  6.6 
Additional  matter  to  foot-note  7.7 


1  See  also  following  chapters,  §§  258  to  314  this  Supplement,   post. 

2  Washington.     Owen  v.  Casey,   48   Wash.   673,   94  Pac.   Rep.   463. 

3  Arbitration   clause: 

California.  See  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  230,  107  Pac. 
Rep.  150.  Compare  Dahlberg  v.  Girsch  (Cal.),  107  Pac.  Rep.  616. 

Colorado.  Compare,  generally,  Empson  P.  Co.  v.  Clawson,  43  Colo. 
188,  95  Pac.  Rep.  546. 

Washington.     See  Owens  v.  Casey,  48  Wash.  673,  94  Pac.  Rep.  473. 

4  California.     Boyd   v.    Bargagliotti,    12    Cal.   App.    228,    238,    107   Pac. 
Rep.    150. 

5  Idaho.      See    Nelson    Bennett    Co.    v.    Twin    Falls    L.    &    W.    Co.,    on 
rehearing,    14    Idaho    5,    93   Pac.   Rep.    789,    801;    s.   c.,   92    Pac.   Rep.   780 
(where  submission  to  arbitration  is  not  binding  upon  both  parties,  it 
will   not   be  enforced  by   the  courts). 

6  California.     See  Boyd  v.   Bargagliotti,    12   Cal.  App.   228,   238. 
Idaho.     Compare  Nelson  Bennett  Co.  v.  Twin  Falls  L.   &  W.  Co.,  14 

Idaho  5,  93  Pac.  Rep.  789,  795,  796,  92  Pac.  Rep.  980. 

7  California.     See  Burke  v.  Dittus,   8  Cal.  App.   175,   178,  96  Pac.  Rep. 
330;  Coplew  v.  Durand,  153  Cal.  278,  279,  95  Pac.  Rep.  38. 


cc  232-236  MECHANICS'  LIENS— SUPPLEMENT.  QQ 

Additional  matter  to  foot-note  8.8 

S  233.     Same.    Distinction  between  two  classes  of  cases. 
Additional  matter  to  foot-note  9.9 

§  234.     Same.    Submission  to  arbitration  revocable. 
Additional  matter  to  foot-note  10.10 

§  235.     Same.    Good  faith  and  open  dealings  of  arbitrators. 
Additional  matter  to  foot-note  II.11 

§  236.  Estimates.  Stipulations  in  construction  contracts 
that  engineers'  estimates  should  be  followed  have  been  gen- 
erally held  valid  and  more  binding  than  the  ordinary  sub- 
mission to  arbitration,  for  the  reason  that  such  stipulations 
enter  into  and  become  a  part  of  the  consideration  of  the  con- 
tract, without  which  it  would  not  in  all  probability  have  been 
made.  They  are  intended  to  avoid  harrassing  litigation  over 
questions  that  can  only  be  determined  intelligently  by  those 
possessing  scientific  knowledge.12 

Washington.  Dickerman  v.  Reeder  (Wash.,  July  23,  1910),  109  Pac. 
Rep.  1060. 

s  Washington.  See  Dickerman  v.  Reeder  (Wash.,  July  23,  1910), 
109  Pac.  Rep.  1060. 

9  Colorado.      See    Town    of    Sterling   v.    Hurd,    44    Colo.    436,    98    Pac. 
Rep.   174,  176. 

Waahington.  See  Use  v.  Aetna  I.  Co.,  55  Wash.  487,  104  Pac.  Rep. 
787,  789. 

10  See  |  231  this  Supplement,  ante. 

11  Colorado.      See    Town    of   Sterling   v.    Hurd,    44   Colo.    436,    98    Pac. 
Rep.  174,  176;  Empson  P.  Co.  v.  Clawson,  95  Pac.  Rep.  546.     See,  also, 
Lamson  v.  City  of  Marshall,   133  Mich.  250,  95  N.  W.  Rep.  78. 

Idaho.  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho 
5,  93  Pac.  Rep.  789,  92  Pac.  Rep.  980. 

Utah.  See  Midgley  v.  Campbell  B.  Co.  (Idaho,  January  4,  1911), 
112  Pac.  Rep.  820.  , 

Waxhlngton.  Camp  v.  Neufelder,  49  Wash.  426,  95  Pac.  Rep.  640; 
McKivor  v.  Savage  (Wash.,  September  19,  1910),  110  Pac.  Rep.  811, 
812;  Sweatt  v.  Bonne  (Wash.,  September  3,  1910),  110  Pac.  Rep.  617; 
Plnickneff  v.  Johnson,  54  Wash.  156,  102  Pac.  Rep.  1047,  1048. 

See,  generally,  chapter  on  Architect,  §§  119  et  seq.,  this  Supplement, 
ante. 

12  California.      City    S.    I.    Co.    v.    Marysville,    155    Cal.    419,    427,    101 
Pac.  Rep.  308;  Williams  v.  Chicago  etc.  Ry.  Co.,  112  Mo.  487,  20  S.  W. 
Rep.  631,  34  Am.  St.  Rep.  403. 

But  the  -i  iiml:ii  ii.n   intiat   be  expressed   In  clear  language: 


97  CONTRACTS— COMMON  CLAUSES.  §§  236    237 

Additional  matter  to  foot-note  14. 13 

§  237.     Liquidated  damages. 
Additional  matter  to  foot-note  16. 14 
Additional  matter  to  foot-note  18. 15 
Additional  matter  to  foot-note  19. 16 


Oregon.  Williams  v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.,  August  3, 
1910),  110  Pac.  Rep.  490,  492;  s.  c.,  Ill  Pac.  Rep.  17. 

is  Idaho.  See  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14 
Idaho  5,  93  Pac.  Rep.  789,  797,  92  Pac.  Rep.  980. 

Oregon.  See  Williams  v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.,  August 
3,  1910),  110  Pac.  Rep.  490,  492;  s.  c.,  Ill  Pac.  Rep.  17. 

Washington.  Estimates  not  overthrown,  except  upon  evidence  of 
fraud:  McKivor  v.  Savage  (Wash.,  December  19,  1910),  110  Pac.  Rep. 
811,  812;  Pinickneff  v.  Johnson,  54  Wash.  156,  102  Pac.  Rep.  1047.  But 
see  Young  Men's  Christian  Assoc.  v.  Gibson,  58  Wash.  307,  108  Pac. 
Rep.  766,  769;  Use  v.  Aetna  I.  Co.,  55  Wash.  487,  104  Pac.  Rep.  787. 

11  Liquidated  damages: 

See  §  810  Treatise. 

California.  See  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  238,  107  Pac. 
Rep.  150;  Hill  v.  Clark,  7  Cal.  App.  609,  612,  95  Pac.  Rep.  382;  Sherman 
v.  Gray,  11  Cal.  App.  348,  104  Pac.  Rep.  1004. 

Colorado.     See  Gillett  v.  Young,   45  Colo.   562,  101  Pac.   Rep.   766. 

Kansas.  St.  Louis  &  S.  F.  R.  Co.  v.  Gaba,  78  Kan.  432,  97  Pac. 
Rep.  435. 

Xew  Mexico.     See  Thomas  v.  Gavin   (N.  M.),  110  Pac.  Rep.  841. 

Washington.  Waiver.  See  Erickson  v.  Green,  47  Wash.  613,  92 
Pac.  Rep.  449. 

Damages   for   delay: 

California.  See  Bacigalupi  v.  Phoenix  B.  &  C.  Co.  (Cal.  App.,  No- 
vember 23,  1910),  112  Pac.  Rep.  892,  894;  Lacy  Mfg.  Co.  v.  Los  Angeles 
G.  &  E.  Co.,  12  Cal.  App.  37,  42,  106  Pac.  Rep.  413;  Seebach  v.  Kuhn, 
9  Cal.  App.  485,  490,  99  Pac.  Rep.  723. 

Colorado.     Gillett  v.  Young,  45  Colo.  562,  101  Pac.  Rep.   766. 

Washington.  See  Keenan  v.  Empire  State  S.  Co.  (Wash.,  February 
20,  1911),  113  Pac.  Rep.  636,  638;  Goss  v.  Northern  Pac.  H.  Assoc.,  50 
Wash.  236,  96  Pac.  Rep.  1078. 

Damages,   generally: 

California.  See  Gay  v.  Engrebretson,  158  Cal.  21,  109  Pac.  Rep. 
877;  s.  c.,  sub.  nom.,  Engrebretson  v.  Gay,  158  Cal.  27,  30,  109  Pac. 
Rep.  879. 

Kansas.  See  Fossett  v.  Rock-Island  L.  &  Mfg.  Co.,  76  Kan.  428, 
92  Pac.  Rep.  833,  838,  839. 

Washington.  Dickerman  v.  Reeder  (Wash.,  July  23,  1910),  109  Pac. 
Rep.  1060. 

is  Kansas.  Illinois  T.  &  S.  B.  v.  City  of  Burlington,  79  Kan.  797, 
101  Pac.  Rep.  649. 

Washington.  Dickerman  v.  Reeder  (Wash.,  July  23,  1910),  109  Pac. 
Rep.  1060. 

16  Washington.     Williams  v.  Lewis  N.  Rosenbaum  Co.,   57  Wash.   94, 

106  Pac.   Rep.   493;   Sheard  v.  United  States  F.   &  G.  Co.,>58  Wash.   29, 

107  Pac.    Rep.    1024,    1027;   demons   v.   Grays   Harbor   &   P.    S.   Ry.    Co. 
(Wash.,   April   7,   1911),   114  Pac.  Rep.   865;   Bell  v.   Scranton  C.  M.   Co. 

Bloom's  Sup. — 7 


§§  238-241  MECHANICS'  LIENS — SUPPLEMENT.  93 

§  238.     Certificates. 
Additional  matter  to  foot-note  20. 17 
Additional  matter  to  foot-note  22. 18 
Additional  matter  to  foot-note  23.  19 

§  239.     Certificate,  when  excused. 
Additional  matter  to  foot-note  25.20 
Additional  matter  to  foot-note  26.21 

§  240.    Waiver  of  certificate. 
Additional  matter  to  foot-note  27.22 

§  241.     Same.    Dismissal  of  architect. 
Additional  matter  to  foot-note  30.23 


(Wash.),  110  Pac.  Rep.  628.  See  Erickson  v.  Green.  47  Wash.  613,  92 
Pac.  Rep.  449,  450;  Madler  v.  Silverstone,  65  Wash.  159,  104  Pac. 
Rep.  165. 

IT  California.  See  City  S.  I.  Co.  v.  Marysville,  155  Cal.  419,  432,  101 
Pac.  Rep.  308.  Compare  Watson  v.  Alta  L  Co.,  12  Cal.  App.  560,  108 
Pac.  Rep.  48. 

Certificate  of  professional  architect  not  required!  Bacigalupi  v. 
Phoenix  B.  &  C.  Co.  (Cal.  App.,  November  23,  1910),  112  Pac.  Rep. 
892,  895. 

\\  nxliliiKton.  See  Young:  Men's  Christian  Assoc.  v.  Gibson,  58  Wash. 
307,  108  Pac.  Rep.  766,  767. 

is  Oregon.  See  Mclnnis  v.  Buchanon,  53  Ore?.  229,  99  Pac.  Rep. 
929,  930. 

\\iiMiiiiiKton.  Sweatt  v.  Bonne  (Wash.,  September  3,  1910),  110  Pac. 
Rep.  617. 

IB  Washington.  Dickerman  v.  Reeder  (Wash.,  July  23,  1910),  109 
Pac.  Rep.  1060. 

20  Montana.     Piper  v.  Murray    (Mont.,  April   22,  1911),   115   Pac.  Rep. 
669,   671. 

21  See  Architect.  §§  129a  et  seq.,  this  Supplement,  ante. 
California.      Coplew   v.    Durand,    153   Cal.    278,    281,    95   Pac.    Rep.    38. 

See  City  S.  I.  Co.  v.  Marysville,  155  Cal.  419,  432.  101  Pac.  Rep.  308; 
Hetting-er  v.  Thiele  (Cal.  App.,  December  13,  1910),  113  Pac.  Rep. 
121,  123. 

Illinois.    See  Mantonya  v.  Reilly,  83  111.  App.  275,  affirming  84  111.  183. 

Utah.    Piper  v.  Murray  (Mont.,  April  22,  1911),  115  Pac.  Rep.  669,  671. 

Washington.  See  Use  v.  Aetna  I.  Co.,  55  Wash.  487,  104  Pac.  Rep. 
787;  Dickerman  v.  Reeder  (Wash.,  July  23.  1910),  109  Pac.  Rep.  1060. 

22  Montana.     Piper  v.  Murray  (Mont.,  April  22,  1911),  116  Pac.  Rep. 
669,   673. 

Oregon.     Mclnnis  v.  Buchanon,  53  Oreg.  229,  99  Pac.  Rep.  929,  930. 

23  Montana.     See  Piper  v.  Murray    (Mont.,  April   22,  1911),  115   Pac. 
Rep.  669,  673. 


99  CONTRACTS — COMMON  CLAUSES.  SR  242-245 

§  242.    Conclusiveness  of  certificate. 

AdditionaL  matter  to  foot-note  31.24 
Additional  matter  to  foot-note  32.25 
Additional  matter  to  foot-note  33.26 

§  243.  Extra  work.  Generally.  The  contractor  can  not 
abandon  the  work  because  the  owner  will  not  agree  to  pay 
him  for  extra  work,  which  the  contractor  is  bound  to  do, 
under  the  contract.27 

Additional  matter  to  foot-note  35.28 

§  244.     Same.    Definition. 
Additional  matter  to  foot-note  36. 29 

§  245.     Same.     Extra    work    provided    for    in    contract. 

Where  the  consent  of  the  parties  to  an  alteration  is  secured 

24  Washington.     As    against    the    sureties    of    contractor:     See    La- 

zelle  v.  Empire  State  S.  Co.,  58  Wash.  589,  109  Pac.  Rep.  195,  197. 

25  Washington.      See   Use   v.   Aetna   I.   Co.,    55    Wash.    487,    104   Pac. 
Rep.   787. 

26  Progress    certificates    of   the    architect   are   not   conclusive,    when 
they  are  issued   with   the  reservation   that  the   final   certificate  is  to 
adjust   the   rights   of  the   parties: 

California.     Coplew  v.  Durand,  153  Cal.  278,  281,  95  Pac.  Rep.  38. 

27  California.     Carlson  v.  Sheehan,  157  Cal.  692,  698,  109  Pac.  Rep.  29. 

28  California.      Extra   work    under   public   contract:      See   City   S.    I. 
Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  Rep.  933,  939. 

Colorado.  Extra  work  ordered  by  architect:  See  Hottel  v.  Poudre 
Valley  R.  Co.,  41  Colo.  370,  92  Pac.  Rep.  918,  919. 

Federal.  Fuller  &  Co.  v.  Young  &  Co.,  126  Fed.  Rep.  343,  61  C.  C. 
A.  245. 

Idaho.  See  Whitney  v.  State  (Idaho,  February  13,  1911),  113  Pac. 
Rep.  98;  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.  789,  803,  92  Pac.  Rep.  980. 

Kansas.  See  City  of  Hutchinson  v.  White,  80  Kan.  37,  101  Pac.  Rep. 
458,  460;  Smith  v.  Chicago  L.  &  C.  Co.  (Kan.,  March  11,  1911),  114 
Pac.  Rep.  372,  374. 

Washington.  See  Camp  v.  Neufelder,  49  Wash.  426,  95  Pac.  Rep. 
640;  James  v.  Beebe  (Wash.,  July  18,  1910),  109  Pac.  Rep.  1032;  Yundt 
v.  Schultz-Degginger  Co.  (Wash.,  March  3,  1911),  113  Pac.  Rep.  760; 
•Keenan  v.  Empire  State  S.  Co.  (Wash.,  February  20,  1911),  113  Pac. 
Rep.  636,  638. 

29  California.     See  City  S.  I.  Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  Rep. 
933,   939,  940. 

Utah.  Ryan  v.  Curlew  I.  &  R.  Co.  (Utah,  September  16,  1909),  104 
Pac.  Rep.  218,  219. 

Washington.  See  James  v.  Beebe  (Wash.,  July  18,  1910),  109  Pac. 
Rep.  1032,  1033. 


§  245 


MECHANICS'   LIENS—  SUPPLEMENT. 


by  a  reservation  of  power  in  the  employer  to  make  such 
changes  inserted  in  the  original  contract,  the  rule  must  nec- 
cessarily  be  the  Same  with  respect  to  the  right  to  compensa- 
tion for  extra  work  caused  thereby,  or  to  a  deduction  thereby, 
as  when  the  alteration  is  made  by  consent  after  the  work  is 
begun.  It  is  established  that  in  such  cases  the  contractor 
is  entitled  to  charge  and  receive  the  reasonable  value  or  cost 
of  the  extra  work  caused  by  the  alteration.  Upon  the  same 
principles,  it  must  also  be  held  that  the  employer  or  owner. 
is  entitled  to  a  reasonable  reduction  from  the  contract  price, 
if  the  changes  thus  made  by  authority  or  consent  have  mate- 
rially lessened  the  amount  and  cost  of  the  work  required  by 
the  original  contract,  and  that  such  deduction  should  be  made 
at  the  contract  rate  for  the  work  omitted,  as  far  as  practi- 
cable. The  rule  is  thus  stated  in  3  Southerland  on  Damages, 
§709:  "It  often  occurs  that  a  partial  rescission  results 
from  deviations  from  the  original  plan  and  contract  made 
by  deliberate  and  explicit  direction  of  the  employer,  or  with 
his  consent  and  acquiesence,  and  -by  such  departure  other 
work  is  substituted  with  other  prices  agreed  to,  or  implied. 
In  such  cases  the  omission  of  the  particular  work  excluded 
by  the  substitution  is  not  a  violation  of,  but  is  dispensed 
with  by  modifying,  the  contract.  *  *  *  The  contractor 
may  then  be  entitled  to  recover  the  contract  price  with  in- 
crease or  subject  to  such  diminution  as  is  produced  by  the 
change  of  plan,  on  a  quantum  meruit.  "30 

The  reason  of  this  rule  is  practically  the  same  as  in  the 
numerous  cases  holding  that  a  slight  failure  of  the  con- 
tractor to  make  complete  performance  is  not  sufficient  to 
defeat  his  right  to  recover  the  contract  price,  less  a  reason- 
able deduction  for  the  imperfections.  This  is  the  rule  where 
imperfections  are  not  fraudulent,  but  are  made  by  accident 

so  California.  City  S.  I.  Co.  v.  Kroh  (Cal.,  September  2,  1910),  110 
Pac.  Rep.  933,  940,  941. 

The  following  cases  hold  that  In  case  the  work  is  materially  dimin- 
ished by  such  alteration  the  employer  is  entitled  to  have  the  con- 
tract price  proportionately  reduced:  Holmes  v.  Stummel,  17  111.  455; 
Goldsmith  v.  Hand,  26  Ohio  St.  107;  Jewett  v.  Weston,  11  Me.  349; 
White  v.  Oliver,  36  Me.  92;  Wright  v.  Wright,  11  Ky.  180. 


CONTRACTS— COMMON  CLAUSES.  §§  245-247 

or  inadvertence,  and  are  not  of  sufficient  extent  to  consti- 
tute a  substantial  departure  from  the  original  plan.  The 
employer  is  presumed  to  agree  to  take  the  completed  struc- 
ture as  it  is,  with  the  implied  agreement  by  the  contractor 
to  make  the  proper  deduction  from  the  price,  and  the 
recovery  is  upon  the  contract,  and  not  upon  the  quantum 
meruit.31 

Additional  matter  to  foot-note  40. 32 

§  246.  Same.  Contract  in  writing. 
Additional  matter  to  foot-note  42.33 
Additional  matter  to  foot-note  43. 34 

§  247.    Same.    Verbal  alteration  of  written  contract. 

Additional  matter  to  foot-note  44.35 


31  California.     City   S.   I.   Co.  v.   Kroh    (Gal.,   September   2,   1910),   110 
Pac.  Rep.   933,   940.     See  Perry  v.  Quackenbush,   105  Cal.  308,  38  Pac. 
Rep.   740;  Marchant  v.  Hayes,  117  Cal.   672,   49  Pac.  Rep.   840;  Elliott 
v.  Caldwell,  43  Minn.  361,  45  N.  W.  Rep.  845,  9  L.  R.  A.   52;  Crouch  v. 
Gutmann,  134  N.  Y.  45,  31  N.  E.  Rep.  271,  30  Am.  St.  Rep.  608. 

"An  alteration  from  the  original  plan,  decreasing  the  grading  under 
the  contract  in  the  case  at  bar,  could  not  be  said  to  be  a  breach 
of  the  contract,  since  the  contract  authorizes  it.  But,  as  it  does  not 
provide  for  a  decrease  of  the  price  corresponding  to  the  decrease  in 
the  grading,  it  would  be  necessary  to  resort  to  the  general  principles 
of  the  law  of  implied  contracts.  The  county  would  in  that  event  be 
entitled  to  deduct  from  the  contract  price  for  the  grading  a  propor- 
tion thereof  equal  to  the  proportion  which  the  omitted  portion  of 
the  work  of  grading  would  bear  to  the  whole  work,  with  reasonable 
allowances  to  either  party  for  any  material  variations  in  the  expense 
of  such  omitted  grading  arising  from  conditions  different  from  the 
average.  This  being  the  rule,  the  provision  for  extra  work  is  fair  to 
all  parties,  and  can  not  be  supposed  to  have  had  a  tendency  to  pre- 
vent competition  in  bidding":  City  S.  I.  Co.  v.  Kroh  (Cal.,  September 
2,  1910),  110  Pac.  Rep.  933,  940,  941. 

32  Kansas.     See   City   of   Hutchinson   v.   White,    80   Kan.    37,    101   Pac. 
Rep.   458,  460. 

33  Kansas.     City  of  Hutchinson  v.  White,   80  Kan.   37,   101  Pac.  Rep. 
458,   460. 

Montana.  See  Piper  v.  Murray  (Mont.,  April  22,  1911),  111  Pac. 
Rep.  669,  671. 

34  Kansas.     City  of  Hutchinson  v.  White,  80  Kan.   37,   101  Pac.  Rep. 
458,   460. 

Montana.  See  Piper  v.  Murray  (Mont.,  April  22,  1911),  115  Pac. 
Rep.  669,  671. 

35  Montana.     See   Piper  v.  Murray    (Mont.,   April    22,    1911),    115   Pac. 
Rep.  669,  671. 


247-253  MECHANICS1  LIENS  —  SUPPLEMENT. 

Additional  matter  to  foot-note  46.36 

§  248.    Same.    Estoppel. 
Additional  matter  to  foot-note  46.37 

§  249.    Same.    Arbitration. 
Additional  matter  to  foot-note  47.38 

§  250.    Same.    Void  contract. 
Additional  matter  to  foot-note  49.30 


§  251.  Payments.  How  considered  herein.  An  agree- 
ment to  pay  a  portion  of  the  contract  price,  "as  the  work 
progresses"  will  be  construed  in  a  reasonable  manner;  an<l 
the  contractor  can  not  demand  certificates  from  day  t-> 
day,  but  only  at  reasonable  intervals.40 

Additional  matter  to  foot-note  53.41 

§  252.    Same.     Condition  precedent. 
Additional  matter  to  foot-note  55.42 

§  253.  Same.  Waiver.  There  is  a  conflict  in  the  authori- 
ties generally  as  to  whether  a  provision  in  the  contract  that 


36Kan*an.  City  of  Hutchinson  v.  White,  80  Kan.  37,  101  Pac.  Rep. 
458,  460. 

87  Washington.     See  Holm  v.  Chicago  M.   &  P.   S.  Ry.   Co.    (Wash., 
July  7,  1910).  109  Pac.  Rep.  799,  800. 

88  See  J|  230-235,  this  Supplement. 

SB  California.  The  Statutory  Original  Contract  was  abolished  by 
amendment  of  May  1,  1911,  to  5  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.).  See  §|  258,  269,  274,  281,  288  and  328,  this 
Supplement,  ante. 

40  California.     Hettinger  v.   Thlele    (Cal.    App.),   113   Pac.   Rep.    121. 
See  Vulcan  I.  Works  v.  Cook  (Cal.  App.,  February  10,  1911),  114  Pac. 
Rep.  995. 

41  Federal.     See  Fuller  &  Co.  v.  Young  &  Co.,  126  Fed.  Rep.  343,  61 
C.  C.  A.  245. 

42  Colorado.     Lombard  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92  Pac. 
Rep.  695. 

Washington.  See  Green  v.  City  of  Ballard,  51  Wash.  149,  98  Pac. 
Rep.  95. 


103  CONTRACTS— COMMON  CLAUSES.  .§§  253-257 

the  contractor  shall  furnish  all  labor  and  materials  expressly 
or  by  implication  requires  the  contractor  to  pay  therefor.43 

§  254.     Same.    Application  of  payments. 
Additional  matter  to  foot-note  58.44 
Additional  matter  to  foot-note  59. 45 
Additional  matter  to  foot-note  60.46 

§  255.     Liens.     Statutory  provision.     California. 
Additional  matter  to  foot-note  61. 47 

§  256.    Same.    Condition  precedent. 
Additional  matter  to  foot-note  62.48 

§  257.     Same.    Public  property. 
Additional  matter  to  foot-note  63. 49 


43  See  authorities  cited  In  Covey  v.  Schllesswohl  (Colo.,  March  6, 
1911),  114  Pac.  Rep.  292.  See  State  Board  of  Agriculture  v.  Dimick, 
46  Colo.  609,  105  Pac.  Rep.  1114,  1115. 

4*  Oregon.     See  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202,  204. 

45  Oregon.     See  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202,  204. 
Washington.     See  Bowles  v.  Fraser  (Wash.,  July  14,  1910),  109  Pac. 

Rep.   812. 

46  California.     See  San   Pedro  L.   Co.  v.   Schroeter,    156   Cal.   158,   161, 
103  Pac.  Rep.  888. 

47  California.     §  1201  Code  Civ.  Proc.  was  not  amended  by  Act  May 
1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

48  Colorado.     Provision   for   furnishing  receipted   bills   construed    to 
mean  payment  for  labor  and  material:  Covey  v.  Schliesswohl   (Colo., 
March  6,  1911),  114  Pac.  Rep.  292,  293.    See  State  Board  of  Agriculture 
v.  Dimick,  46  Colo.  609,  613,  105  Pac.  Rep.  1114. 

Washington.  By  merely  agreeing  that  he  will  save  the  owner 
harmless  from  liens,  the  contractor  does  not  waive  his  own  right  to 
a  lien:  Holm  v.  Chicago  M.  &  P.  S.  Ry.  Co.  (Wash.,  July  7,  1910),  109 
Pac.  Rep.  799. 

49  See  §  192,  this  Supplement,  ante. 

Oklahoma.     See  Jarrell  v.  Block,  19  Okl.  467,  92  Pac.  Rep.  167,  168. 


cc  258-260          MECHANICS'   LIENS— SUPPLEMENT. 


CHAPTER  XIV. 

BUILDING      CONTRACTS       (CONTINUED).      NON-STATUTORY 
ORIGINAL  CONTRACTS. 

£  258.    Method  of  treatment. 
Additional  matter  to  foot-note  I.1 

§  259.  Statutory  and  non-statutory  original  contracts 
compared.  Where  a  person  termed  the  "contractor"  is  to 
receive  a  certain  percentage  of  the  cost  of  construction  and 
is  merely  to  act  as  the  common-law  agent  of  the  owner, 
his  contract  is  not  a  statutory  original  contract,  even  if  the 
amount  of  the  contract  price  is  more  than  one  thousand  dol- 
lars;- and  likewise,  where  the  supposed  "contractor"  is 
merely  an  employee  of  the  owner,  such  as  his  carpenter,3  or 
his  architect.4 

Additional  matter  to  foot-note  7.r> 

$  260.  Same.  Implied  contract.  The  provisions  of  the 
statute  with  reference  to  the  statutory  original  contract 
are  not  to  be  extended  to  any  contract  not  falling  strictly 
within  the  letter  of  the  law.0 

Additional  matter  to  foot-note  8.7 

1  California.     While  the  statutory  original  contract  has   been   abol- 
ished  under   the   act   of  May    1,    1911,    Stats.   &   Amdts.    1911,   pp.    1313 
et  seq.,  and   under  that  act  the  "original   contract"   is  required   to  be 
filed  with  the  statutory  bond  to  limit  the  liability  of  the  owner  to  the 
value  of  the  work  performed  and  materials  furnished,   It   would  seem 
that  decisions  Indicating  what  is  an  "original  contract"  thus  required 
to  be  filed  would  be  applicable. 

2  California.      NV.-.lham    v.    Chandler,    8    Cal.    App.    124,    126,    96    Pac. 
Rep.  325.     See  Loma  Prleta  L.  Co.  v.  HInton,  12  Cal.  App.  766,  108  Pac. 
Etap    IN, 

s  California.  Fnrnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
271,  96  Pac.  Rep.  788. 

<  California.  See  Loma  Prieta  L.  Co.  v.  HInton,  12  Cal.  App.  766, 
108  Pac.  Rep.  628. 

:•  California.     See  Lucas  v.  Gobbl,  10  Cal.  App.  648,  108  Pac.  Rep.  157. 

«  California.  Los  Angeles  P.  B.  Co.  v.  Hlggins,  8  Cal.  App.  514,  518, 
97  Pac.  Rep.  414.  420. 

T  California.  See  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266.  271,  96  Pac*  Rep.  788. 


1Q5  NON.STATUTORY  ORIGINAL  CONTRACTS.    SS  261-268 

§  261.     Same.    Contract  price  less  than  one  thousand  dol- 
lars. 

Additional  matter  to  foot-note  II.8 

§  262.     Same.    Contract  price  computable. 
Additional  matter  to  foot-note  14.9 

§  263.    What  in  no  event  a  statutory  original  contract. 
Additional  matter  to  foot-note  15. 10 

§  264.  Provisions  not  applicable  to  non-statutory  orig- 
inal contracts. 

Additional  matter  to  foot-note  17. n 

§  265.     Same.    Writing.    Filing.    Payments. 
Additional  matter  to  foot-note  17. 12 

§  266.     Same.    Notice  to  owner.    Premature  payments. 
Additional  matter  to  foot-note  24. 13 

§  267.     Same.    Payment  in  land. 
Additional  matter  to  foot-note  27. 14 

§  268.     Same.     Alteration  of  contract.    -Conspiracy. 
Additional  matter  to  foot-note  28. 15 

8  California.     See  Los  Angeles  P.  B.  Co.  v.  Higgins,   8  Gal.  App.  514, 
518,  97  Pac.  Rep.  414,   420;   Farnham  v.  California  S.  D.   &  T.   Co.,   8 
Cal.  App.   266,  271,  96  Pac.  Rep.  788. 

Conflict  of  evidence  as  to  whether  contract  was  for  one  thousand 
dollars,  assailed,  finding  upheld:  See  Lucas  v.  Gobbi,  10  Cal.  App.  648, 
652,  103  Pac.  Rep.  157. 

9  California.     See  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266,  272,  96  Pac.  Rep.  788. 

10  California.     See   Loma   Prieta  L.   Co.   v.   Hinton,    12   Cal.   App.   766, 
108  Pac.  Rep.  528. 

11  California.     See  §  258,  this  Supplement,  ante,  note. 

12  California.     See  §  258,  this  Supplement,  ante,  note. 

is  California.  See  Notice  to  Owner,  §§526  et  seq.,  this  Supplement, 
post. 

i*  California.     See  §  258,  this  Supplement,  ante,  note. 

15  California.  Pearsall  v.  Henry,  153  Cal.  314,  95  Pac.  Rep.  154,  159; 
but  a  new  oral  agreement,  superseding  and  substituted  for  those 
existing,  and  sufficient  in  itself  as  a  contract,  is  not  within  the  rule: 
Pearsall  v.  Henry,  supra. 


cc  269-272  MECHANICS'  LIENS — SUPPLEMENT.  JQ6 


CHAPTER  XV. 

BUILDING  CONTRACTS  (CONTINUED).   STATUTORY 
ORIGINAL  CONTRACTS. 

A.     Statutory  Requirements  not  Essential  to  the  Validity 
of  the  Whole  Statutory  Original  Contract. 

§  269.     Provisions    imposing    a    penalty.      Payments,    in 
general.    Statutory  provision. 

Additional  matter  to  foot-notes  1  and  2.1 

§  270.     Same.    Scope  and  object  of  these  provisions. 
Additional  matter  to  foot-note  4.2 

§  271.    Same.    Substantial  compliance  required.     Effect. 
Additional  matter  to  foot-note  6.3 
Additional  matter  to  foot-note  12.4 

§  272.     Same.     Contract  price  not  to  be  payable  in  ad- 
vance of  work. 

Additional  matter  to  foot-note  13.5 


1  California.     These  provisions  are  not  In   the  act  amending   §  1184 
Code  Civ.  Proc.,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.,  which,  however, 
provides  for  a  lien  for  the  value  of  the  labor  done  and  materials  fur- 
nished,   independently    of    the    contract    between    the    owner   and    the 
original  contractor,  when  the  original  contract  and  the  statutory  bond 
are  not  filed,  In  accordance  with  the  requirements  of  |  1183. 

2  California.     See   I  269,  this  Supplement,  ante,  note. 

s  California.  Substantial  compliance  required t  Merced  L.  Co.  v. 
Bruschi,  152  Cal.  372,  374,  92  Pac.  Rep.  844;  Barrett-Hicks  Co.  v.  Glas, 
99  Pac.  Rep.  857,  860;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac. 
Rep.  769;  8.  c.,  sub  nom.,  Burnett  v.  Glas,  154  Cal.  249,  97  Pac. 
Rep.  423. 

4  California.  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621,  110 
Pac.  Rep.  474,  476;  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514. 
524,  526,  97  Pac.  Rep.  414,  420.  See  Smith  v.  Dryden  (Cal.  App.,  March 
10,  1911),  115  Pac.  Rep.  455;  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App. 
491,  945,  99  Pac.  Rep.  856,  111  Pac.  Rep.  769;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Colorado.     See  Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

s  See  {  269,  this  Supplement,  ante,  note. 


]()7  STATUTORY  ORIGINAL  CONTRACTS.          SS  273-276 

§  273.  Same.  Contract  price  payable  in  installments,  or 
after  completion. 

Additional  matter  to  foot-note  16. 6 

§  274.  Same.  Payment  of  twenty -five  per  cent  thirty -five 
days  after  completion.  The  legislature  deemed  this  reser- 
vation of  twenty-five  per  cent,  under  the  statute  as  it  stood 
at  the  time,  a  sufficient  compliance  with  the  constitutional 
provision,  and  it  was  thought  that  the  legislature  had 
gone  as  far  as  it  could  be  expected  to  go  for  the  protection 
of  the  owner,  when  it  declared  this  twenty-five  per  cent  of 
the  contract  price  to  be  sufficient  to  cover  the  full  value  of 
the  labor  done  and  material  furnished  for  the  building.7 

Additional  matter  to  foot-notes  24  and  25.8 

§  275.    Same.     Object  of  provision. 
Additional  matter  to  foot-note  27. 9 

§  276.     Same.    General  rule. 
Additional  matter  to  foot-note  29. 10 


e  California.  See  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621, 
110  Pac.  Rep.  474,  475. 

See  §  269,  this  Supplement,  ante,  note. 

7  California.     D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.   621,  110 
Pac.  Rep.  474,  475;  Hampton  v.  Christensen,  148  Cal.  729,  737,  84  Pac. 
Rep.   200,  203. 

The  statutory  original  contract  was  abolished  by  the  act  of  May  1, 
1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.  See  §§258  and  269,  this 
Supplement,  ante,  notes. 

8  California.    Merced  L.  Co.  v.  Bruschl,  152  Cal.  372,  374,  92  Pac.  Rep. 
844;  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621,  110  Pac.  Rep. 
474,  476;  Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  229,  233,  101  Pac.  Rep. 
691;    Burnett   v.    Glas,    154    Cal.    249,    256,    97   Pac.    Rep.    423;    s.    c.,    sub 
nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111 
Pac.  Rep.  769. 

9  California.     See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
524,  526,  97  Pac.  Rep.   414,  420.     See  §§  258,   269  and  274,  this  Supple- 
ment, ante,  notes. 

10  California.     See  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  374,  92  Pac. 
Rep.  844;  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  860;  s.  c.,  9  Cal. 
App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  769;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423;  D.  I.  Nofziger  L.  Co.  v.  Solo- 
mon, 13  Cal.  App.  621,  110  Pac.  Rep.  474,  476.     See  §§  258,  269  and  274, 
this  Supplement,  ante,  notes. 


§§  277-281  MECHANICS'  LIENS — SUPPLEMENT.  JQg 

§  277.     Same.     Illustrations.     Sufficient  compliance. 
Additional  matter  to  foot-note  30. n 
Additional  matter  to  foot-note  33.12 

§  278.  Same.  What  not  substantial  compliance.  A  pro- 
vision of  the  statutory  original  contract  that  the  final  pay- 
ment of  twenty-five  per  cent  should  be  made  at  the  comple- 
tion of  the  building  is  an  insufficient  compliance  with  the 
statute,  as  it  existed  before  the  amendment  of  1911. 13 
Likewise  a  provision  for  reserving  only  twenty  per  cent 
of  the  contract  price.14 

§  279.     Same.    Provision  as  to  liens. 
Additional  matter  to  foot-note  36.15 

§  280.    Same.    Payment  in  money. 
Additional  matter  to  foot-note  37. 16 

§  281.  Same.  Contractor's  bond.  Provision  unconsti- 
tutional. 

Additional  matter  to  foot-note  43. 17 


11  California.     But  if  amount  payable  at  completion,  otherwise:  See 
Merced  L.  Co.  v.  Bruschl,  152  Cal.  372,  374,  92  Pac.  Rep.  844. 

12  California.     Bat  otherwise,  If  there  is  a  reservation  of  only  twenty 
per  cent,  of  the  contract  price:     D.  I.  Nofziger  L.  Co.  v.  Solomon,  IS 
Cal.   App.   621,   110   Pac.  Rep.   474,  476;   Burnett  v.  Glaa,   154  Cal.   249, 
256.  97  Pac.  Rep.  423;  s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal. 
App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  769; 

Even  i  IK. nuh  there  be  an  unrevealed  Intention  to  retain,  or  an  actual 
retention  of  the  whole  twenty-five  per  cent,  of  the  contract  price  (the 
failure  to  state  the  proper  amount  not  being  due  to  a  mistake  of  law): 
D.  I.  Nofziger  L.  Co.  v.  Solomon,  supra. 

is  California.  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  374,  92  Pac. 
Rep.  844. 

14  California.     D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621,  110 
Pac.  Rep.  474,  476;  Burnett  v.  Glas,  154  Cal.  249,  256,  97  Pac.  Rep.  423; 
see  s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.  856,  111  Pac.  Rep.  769. 

15  California.    See  §§258,  269  and  274,  this  Supplement,  ante,  notes. 
i«  California.     Statutory   original   contract  abolished  by  Act  May   1, 

1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.     See  |§  258,  269  and  274,  this 
Supplement,  ante,  notes. 

IT  California.  The  act  of  May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313 
et  seq.,  amending  §  1183  Code  Civ.  Proc.,  provides  for  a  contractor's 
bond  to  be  filed  with  the  contract,  otherwise  the  property  to  a  lien 


1QQ  STATUTORY  ORIGINAL  CONTRACTS.         §|  282,  283 

§  282.     Same.    Effect  of  giving  bond.     Common-law  obli- 
gation. 

Additional  matter  to  foot-note  49. 18 
Additional  matter  to  foot-note  51. 19 

§  283.     Same.    Previous  decisions  concerning  bond. 
Additional  matter  to  foot-note  56. 20 


for  the  reasonable  value  of  the  labor  done  and  material  furnished  for 
the  building.  Such  bond  by  its  terms  must  inure  to  the  benefit  of 
any  and  all  persons  who  perform  labor  upon  or  furnish  materials  to 
be  used  in  the  work  described  in  the  contract. 

See  Oklahoma  note,  post,  this  section. 

See  Constitutional  Aspects,  §  39,  and  §§  258,  269,  and  274,  this  Supple- 
ment, ante. 

Statutory  bond  given  besides  common  law  bond,  on  contract:  See 
City  S.  I.  Co.  v.  Kro-h,  158  Cal.  308,  110  Pac.  Rep.  933,  938;  Goldtree  v. 
City  of  San  Diego,  8  Cal.  App.  505,  508,  97  Pac.  Rep.  216;  s.  c.,  8  Cal. 
App.  512,  97  Pac.  Rep.  218. 

Kansas.  Statutory  bond  to  release  liens;  held  insufficient,  not  being 
conditioned  "for  the  payment  of  all  claims  which  may  be  the  basis 
of  liens,"  as  required  by  the  statute,  where  the  bond  recites  that  it 
secures  the  owner  against  "claims  arising  from  the  furnishing  of 
labor  or  material  for  the  purposes  hereinbefore  recited,"  which  pur- 
poses are  limited  to  the  erection  of  one  certain  building:  Deatherage 
L.  Co.  v.  Miles  (Kan.,  July,  1911),  116  Pac.  Rep.  505. 

Montana.  Distinction  between  statutory  undertaking  and  statutory 
bond:  See  Dear  Lodge  County  v.  United  States  F.  &  G.  Co.  (Mont., 
December  6,  1910),  112  Pac.  Rep.  1060,  1062. 

Oklahoma.  Statutory  bond  under  §  4829,  "Wilson's  Rev.  &  Ann.  St. 
1903,  to  prevent  attachment  of  liens:  See  Daman  v.  Chamberlain 
(Okl.,  July  12,  1910),  110  Pac.  Rep.  1056.  Compare  Clark  v.  Bank  of 
Hennessey,  14  Okl.  572,  79  Pac.  Rep.  217. 

"To  inure"  means  to  take  or  have  effect;  to  serve  to  the  use,  benefit 
or  advantage  of  a  person:  Mean  v.  Collison  (Okl.,  May  9,  1911),  116 
Pac.  Rep.  195. 

Washington.  Compare  Jensen  v.  Sheard,  49  Wash.  593,  96  Pac.  Rep. 
2;  Sheard  v.  United  States  F.  &  G.  Co.,  58  Wash.  29,  107  Pac.  Rep.  1024. 

18  Colorado.     Statutory  bond,  without  consideration,  given  on  public 
contract;  void:  See  State  Board  of  Agriculture  v.  Dimick,  46  Colo.  609, 
105  Pac.  Rep.  1114,  1115. 

19  California.      See    §§  258,    269,    274   and    281,   this    Supplement,   ante, 
notes. 

Washington.  Statutory  bond  given  under  §  5925,  Ballinger's  Ann. 
C.  &  S.  (§  6121  Pierce's  Code);  time  of  filing  notice:  See  Cascade  L.  Co. 
v.  Aetna  I.  Co.,  56  Wash.  503,  106  Pac.  Rep.  158;  Minneapolis  S.  &  M. 
Co.  v.  Aetna  I.  Co.,  56  Wash.  699,  106  Pac.  Rep.  160.  See  also,  Fran- 
zioli  v.  Thompson,  55  Wash.  259,  104  Pac.  Rep.  278,  280;  Griffith  v. 
Rundle,  23  Wash.  453,  63  Pac.  Rep.  199,  55  L.  R.  A.  381. 

20  Bond  given  under  statute  on  public  work:     See  §  626  Treatise  and 
this  Supplement. 

Colorado.  See  State  Board  of  Agriculture  v.  Dimick,  46  Colo.  609, 
105  Pac.  Rep.  1114. 


§§  283-285  MECHANICS'  LIENS  —  SUPPLEMENT. 

Additional  matter  to  foot-note  59.  21 


§  284.     Provisions  avoiding  certain  clauses.     Impairment 
of  liens.    Statutory  provision. 

Additional  matter  to  foot-note  60.22 

§  285.    Same.    Provision,  when  not  applicable. 
Additional  matter  to  foot-note  62.23 


21  WMhlnffton.     Act   1883,  c.  xxlv.,  p.  32,   $  It   See,  explaining  cases 
cited  in  note  of  Treatise,  Tsutakawa  v.  Kumamoto,  63  Wash.  231,  101 
Pac.  Rep.  869,  102  Pac.  Rep.  766. 

22  California,     f  1201  Code  Civ.  Proc.  was  not  amended  by  act  May  1, 
1911,  Stats,  and  Amdts.  1911,  pp.  1313  et  seq. 

28  California.     See  note  to  preceding  section. 


]_]_]_  REQUIREMENTS  ESSENTIAL  TO  VALIDITY.  S»  286-288 


CHAPTER  XVI. 

BUILDING  CONTRACTS  (CONTINUED).   STATUTORY 
ORIGINAL  CONTRACTS. 

B.    Statutory  Requirements  Essential  to  Validity  of  Con- 
tract. 

§  286.     Scope  of  discussion. 
Additional  matter  to  foot-note  2.1 

,§  287.     Statutory  provision. 
Additional  matter  to  foot-note  3.2 

§  288.     What  not  essential  to  validity  of  contract. 

Additional  matter  to  foot-note  5.3 


1  See  §§  211,  214,  258,  269,  274  and  281,  this  Supplement,  ante,  notes. 
California.      The    statutory   original   contract   was   abolished   by   act 

May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

2  California.     The  statutory  original   contract  as  above  stated  was 
omitted  in  the  amendment  to  §  1183  Code  Civ.  Proc.,  of  May  1,   1911, 
Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

See  §§  211,  214,  258,  269,  274  and  281,  this  Supplement,  ante,  notes. 

3  California.     See  §§  286  and  287,  this  Supplement,  ante,  notes.    While 
the  amendment  of  §  1183,  Stats.   &  Amdts.   1911,   pp.   1313  et  seq.,  does 
not   declare   the   original   contract   invalid,   if   not   filed,   the    effect   of 
the  failure  to  file  the  original  contract  and  the  statutory  bond  required 
by  the  amendment  of  1911,  is  the  same  as  before  this  amendment,   so 
far  as  the  Hen  claimants  other  than  the  original  contractor  are  con- 
cerned.    Under  the  provisions  of  the  old  law  requiring  the  statutory 
original   contract   to   be   filed,   such   subclaimants   had  a   lien   for   the 
value   of   the   material   furnished  and   used   in   the   structure   and   for 
the  labor  thereon,   without  regard  to  the  contract  price,   when   such 
contract  was  not  filed  as  required  by  the  statute,   or  when  the  pro- 
visions required  concerning  the  statutory  original  contract  were  not 
substantially   complied  with.     There  does   not,   therefore,   seem   to   be 
any  essential  change  made  in  the  new  statute,  so  far  as  the  liability 
of  the  owner's  property  to  respond  to  liens  is  concerned.     The  change 
seems  to  be  one  of  form  merely.     The  old  law  required  the  owner  to 
do  certain  things  to  have  the  liens  limited  to  the  contract  price;  and 
the  change  simply  requires  him  to  do  certain  other  things  to  appar- 
ently have  the  same  effect.     It  is  true  that  the  language  of  the  new 
law   is  not  free  from   some  question   with   regard  to   this,   as   in   one 
clause  of  §  1183  Code  Civ.  Proc.,  as  thus  amended,  such  limitation  of 
the  recovery  as  against  the  owner's  property  is  apparently  left  to  the 


§§  288-293          MECHANICS'  LIENS — SUPPLEMENT. 

Additional  matter  to  foot-note  7.4 

§  289.     Construction  of  provision. 
Additional  matter  to  foot-note  9.5 

§  290.     Statutory  original  contract  must  be  entered  into 
before  work  is  commenced. 

Additional  matter  to  foot-note  10.6 

§  291.     Same.  Estoppel  as  to  invalidity  of  contract. 
Additional  matter  to  foot-note  II.7 

§  292.     The  statutory  original  contract  must  be  in  writing. 
Additional  matter  to  foot-note  14.8 
Additional  matter  to  foot-note  15.9 

ij  293.    The  statutory  original  contract  must  be  subscribed. 
Additional  matter  to  foot-note  18. 10 


discretion  of  the  Court,  "where  it  would  be  equitable  to  do  so";  but 
other  clauses  In  the  same  section  limit  the  aggregate  liens  to  the 
contract  price,  upon  compliance  with  the  provisions  of  the  statute, 
without  reference  to  any  such  power  of  the  court.  See  also,  however, 
in  this  connection,  |  14  of  the  act,  declaring  the  intent  to  make  the 
lien  "direct."  It  is  to  be  noted  that  the  provisions  of  the  law,  as 
amended,  apply  to  all  contracts,  whether  the  price  is  more  than  one 
thousand  dollars  or  not. 

4  California.  But  see  D.  I.  Nofziger  L.  Co.  v.  Waters,  10  Cal.  App. 
89,  92,  101  Pac.  Rep.  38. 

t>  California.  Subiitantlal  compliance:  Hubbard  v.  Lee,  6  Cal.  App. 
602,  606,  92  Pac.  Rep.  744;  s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528; 
Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  518,  97  Pac.  Rep. 
414.  420.  Compare  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  374,  92  Pac. 
Rep.  844;  Burnett  v.  Glas,  154  Cal.  249,  255,  97  Pac.  Rep.  423;  s.  c., 
sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac.  Rep.  856, 
111  Pac.  Rep.  760. 

See  (  276,  this  Supplement,  ante. 

a  California.  Unless  filed  before  work  Is  commenced  statutory  origi- 
nal contract  is  void:  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  537. 

7  Plans  and  specifications,  see  Architect,  §J  129a  et  seq.,  this  Supple- 
ment, ante. 

s  Plans  and  specifications,  see  J§  129a  et  seq.,  this  Supplement,  ante. 

California.  Statutory  original  contract  abolished  by  Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.  See  also  §5  211,  214,  258,  269,  281,  288,  this  Sup- 
plement, ante,  and  notes. 

9  Washington.     Building  to  be  an  "exact  duplicate"  of  another:    See 
Jones  v.  Nelson  (Wash.,  December  12,  1910),  112  Pac.  Rep.  88. 

10  California.     See  notes  to  preceding  section. 


3  REQUIREMENTS  ESSENTIAL  TO  VALIDITY,  gg  294-297 

§  294.    Filing  contract. 
Additional  matter  to  foot-note  20.11 
Additional  matter  to  foot-note  21. 12 
Additional  matter  to  foot-note  23. 13 

§  295.     The  duty  of  filing  the  contract. 
Additional  matter  to  foot-note  28. 14 

§  296.     Necessity  and  object  of  filing  contract. 
Additional  matter  to  foot-note  30. 15 

§  297.    Whole  contract  must  be  filed. 
Additional  matter  to  foot-note  32. 16 
Additional  matter  to  foot-note  33. 17 


11  Duty  of  officer  to  Index,  and  delay  in  recording  or  indexing:    See 
Covington  v.  Fisher,  22  Okl.  207,  97  Pac.  Rep.  615,  617;  Poplin  v.  Mun- 
dell,   27  Kan.   138. 

12  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  518, 
97  Pac.  Rep.  414,  420. 

13  California.      If    statutory    original    contract    or    memorandum    not 
filed,  contract  voids     Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.   537;  Barrett-Hicks  Co.  v.  Glas,   9  Cal.  App.   491,   99  Pac. 
Rep.   856,   111  Pac.  Rep.   760;   s.   c.,  sub    nom.  Burnett  v.   Glas,  154  Cal. 
249,   97  Pac.  Rep.   423;  Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  117, 
97  Pac.  Rep.  152.     See  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  483, 
94  Pac.  Rep.   773. 

Colorado.  See  Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14,  as  to 
failure  to  file  statutory  original  contract. 

i*  California.  See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
519,  97  Pac.  Rep.  414,  420. 

See  §  288,  this  Supplement,  ante,  note. 

is  California.  It  Is  intended  for  the  protection  of  subclaimants:  Los 
Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  519,  97  Pac.  Rep.  414,  420. 

See  §  288,  this  Supplement,  ante,  note. 

IB  California.  See  §288,  this  Supplement,  ante;  and  §299,  this  Sup- 
plement, post. 

Modifications  of  tbe  statutory  original  contract,  if  not  filed  with 
recorder,  are  of  no  effect:  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep. 
857,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  Ill  Pac.  Rep.  760;  s.  c., 
sub  nom.  Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

As  to  modifications  of  original  contract,  under  amendment  of  §  1183, 
Code  Civ.  Proc.,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.,  see  statute, 
and  §§  326  et  seq.,  this  Supplement,  post. 

IT  California.  See  Hartwell  v.  Ganahl  L.  Co.,  8  Cal.  App.  733,  737, 
97  Pac.  Rep.  901. 

Bloom's  Sup. — 8 


§§  298,  299        MECHANICS'  LIENS— SUPPLEMENT. 

§  298.    Same.    Reference  to  matters  dehors  the  contract. 
Additional  matter  to  foot-note  34. 18 
Additional  matter  to  foot-note  35. 19 

§  299.  Same.  Where  the  plans  and  specifications  are 
referred  to.  Under  provisions  of  law  requiring  the  statutory 
original  contract  to  be  filed,  if  the  plans  and  specifications 
are  attached  to  the  contract  at  the  time  that  they  are  filed 
and  are  filed  with  it,  although  subsequently  separated,  the 
statute  has  been  complied  with,  so  far  as  the  matter  of 
filing  is  concerned.20 

No  oral  evidence  can  be  received  to  show  that  the  plans 
and  specifications  were  intended  by  the  parties  to  form  a 
part  of  the  statutory  original  contract.  It  is  a  question  of 
identification  as  to  the  various  parts  of  the  contract  filed. 
If  it  can  be  determined  from  an  inspection  of  the  writing, 
without  resort  to  parol  testimony  what  the  parties  intended 
to  rely  upon  as  their  guide  in  the  performance  of  the  things 
to  be  done,  and  if  the  instrument,  as  a  whole,  makes  certain 
what  the  intention  was,  it  will  suffice,  and  no  omission 
which  does  not  cause  uncertainty,  or  tend  to  mislead,  will 
be  allowed  to  stand  in  the  way  of  upholding  the  contract 
without  resort  to  parol  evidence.21 

Additional  matter  to  foot-note  36.22 


is  California.  See  Hartwell  v.  Ganahl  L.  Co.,  8  Cal.  App.  733,  736, 
97  Pac.  Rep.  901. 

10  Washington.  Building  to  be  an  "exact  duplicate  of  another"; 
See  Jones  v.  Nelson  (Wash.,  December  12,  1910),  112  Pac.  Rep.  88. 

20  California.     Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  117,  97  Pac. 
Rep.  152. 

21  California.     Coghlan  v.  Quartararo,  115  Pac.  Rep.   664,   666. 

The  pertinency  of  the  decisions  in  this  chapter  will  appear  upon 
examination  of  the  amendment  of  May  1,  1911,  to  §  1183,  Code  Civ. 
Proc.,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.,  which  still  requires  the 
owner  to  file  the  original  contract,  if  he  desires  to  limit  the  liability 
of  his  property,  upon  foreclosure  of  liens,  to  the  contract  price. 

22  California.     Plans  and  specifications,  when  part  of   the  statutory 
original  contract,  must  be  filed  with  it:     Lucas  v.  Rea,   10  Cal.  App. 
641,  102  Pac.  Rep.   822,  101  Pac.  Rep.  537;  Barrett-Hicks  Co.  v.  Glas, 
9  Cal.  App.   491,  99  Pac.   Rep.   856,  111   Pac.   Rep.   760;   s.  c.,   sub   nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423;  Hoffman-Marks  Co.  v. 
Spires,  154  Cal.  111.  117,  97  Pac.  Rep.  152;  Patten  &  Davles  L.  Co.  v. 
Gibson,  9  Cal.  App.  23,  98  Pac.  Rep.  37. 


J15  REQUIREMENTS  ESSENTIAL  TO  VALIDITY.    8  §299-305 

Additional  matter  to  foot-note  37. 23 
Additional  matter  to  foot-note  38. 24 
Additional  matter  to  foot-note  39. 25 
Additional  matter  to  foot-note  41. 26 

§  300.    Memorandum  of  contract.    Statutory  provision. 
Additional  matter  to  foot-note  43. 27 

§  301.     Same.    Effect  of  provision. 
Additional  matter  to  foot-note  44. 28 

§  302.    Same.    Purpose  and  object. 
Additional  matter  to  foot-note  46.29 

§  303.     Same.    What  not  required  in  memorandum. 
Additional  matter  to  foot-note  47.30 

§  304.     Same.    Contract,  or  copy  thereof,  as  memorandum. 
General  principles. 

Additional  matter  to  foot-note  49. 31 

§  305.     Same.    Names  of  all  the  parties  to  the  contract. 
Additional  matter  to  foot-note  51. 32 


23  California.     Burnett  v.   Glas,   154   Cal.    249,   255,    97   Pac.   Rep.   423; 
s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac.  Rep. 
856,  111  Pac.  Rep.  760. 

24  California.     Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  859;  s.  c., 
9   Cal.   App.   491,   99   Pac.   Rep.    856,    111   Pac.   Rep.    760;   s.   c.,    sub   nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

25  Burnett  v.  Glas,  supra. 

26  California.     Barrett-Hicks  Co.  v.  Glas,  supra. 

27  California.     The  memorandum  of  contract  is  abolished  under  the 
amendment  of  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.     See  §§  211, 
214,  258,   269,   274,   281   and   288,  this   Supplement,   ante,  and  notes. 

28  California.     Burnett  v.   Glas,   154   Cal.    249,    255,   256,   97   Pac.   Rep. 
423;  s.  c.,  sub    nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.  856,  111  Pac.  Rep.  760. 

See  note  to  preceding  section. 

29  See  §  300,  this  Supplement,  ante,  note, 
so  See  §  300,  this  Supplement,  ante,  note, 
si  See  §  300,  this  Supplement,  ante,  note. 
32  See  §  300,  this  Supplement,  ante,  note. 


§§  306-313 


MECHANICS'  LIENS  —  SUPPLEMENT. 


§  306.     Same.    Description  of  the  property  to  be  affected 
thereby. 

Additional  matter  to  foot-note  52.33 

§  307.     Same.    Statement  of  the  general  character  of  the 
work  to  be  done. 

Additional  matter  to  foot-note  56.  34 

§  308.     Same.    Statement  of  work.    General  principles. 
Additional  matter  to  foot-note  59.  35 

§  309.     Same.    Reference  to  plans  and  specifications. 
Additional  matter  to  foot-note  64.  36 
Additional  matter  to  foot-note  66.37 

§  310.     Same.     Reference  to  detail  drawings. 
Additional  matter  to  foot-note  70.38 

§  311.    Same.    Payments. 
Additional  matter  to  foot-note  73.  39 

§  312.     Time  of  filing  contract  or  memorandum. 
Additional  matter  to  foot-note  75.40 

§  313.     Place  of  filing  contract  or  memorandum. 
Additional  matter  to  foot-note  80.41 


33  See  §  300,  this  Supplement,  ante,  note. 

34  See  i  300,  this  Supplement,  ante,  note. 

35  See  §  300,  this  Supplement,  ante,  note. 

36  California.     Burnett  v.  Glas,   154  Cal.   249,   255,  256,   97  Pac.   Rep. 
423;  s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.   491,  99  Pac. 
Rep.  856,  111  Pac.  Rep.  760. 

See  Plans  and  Specifications,  |$  129c  et  seq.,  this  Supplement. 

37  California.     Burnett  v.  Glas,  supra. 

38  See  §  301,  this  Supplement,  ante.     See,  also,  Plans  and  Specifica- 
tions,  ||  129a  et  seq.,  this  Supplement. 

39  See  |301,  this  Supplement,  ante,  as  to  abolition  of  memorandum. 

40  California.     See  §  300,  this  Supplement,  ante,  as  to  memorandum, 
under  amendment  of  |  1183,  Code  Civ.  Proc.,  Stats.  &  Amdts.  1911,  pp. 
1313   et   seq.     And   see,  as   to   statutory   original   contract,    §§  211,   214, 
258,  269,  274,  281  and  288,  this  Supplement,  ante. 

41  California.     See  note  to  preceding  section. 


7  REQUIREMENTS    ESSENTIAL    TO    VALIDITY. 

§  314.    Conspiracy  as  to  contract  price. 

Additional  matter  to  foot-note  81. 42 


42  California.  The  provision  quoted  in  the  Treatise  was  omitted 
from  §  1202,  under  the  amendment  of  May  1,  1911,  Stats.  &  Amdts. 
1911,  pp.  1313  et  seq. 


§§  315-317          MECHANICS'  LIENS— SUPPLEMENT. 


CHAPTER  XVII. 

BUILDING  CONTRACTS   (CONTINUED). 

0.  Effect  of  Validity  or  Invalidity  of  Statutory  Original 
Contract. 

§315.    Effect  of  validity  of  contract.     Owner's  liability. 
Additional  matter  to  foot-iiote  2.1 
Additional  matter  to  foot-note  4.2 

§  318.    Same.    Valid  contract  as  notice. 
Additional  matter  to  foot-note  5.s 

§  317.  Same.  Abandonment  of  contract.  Where  the 
value  of  the  work  done  and  materials  furnished  at  the  time 
of  abandonment,  measured  by  the  standard  of  the  whole 
contract  price  is  less  than  the  payments  already  made  to 
the  contractor,  there  is  no  balance  applicable  to  the  payment 
of  lien  claims,  under  the  statutory  original  contract.4 

Additional  matter  to  foot-note  9.5 

Additional  matter  to  foot-note  10.6 


i  California.  Stockton  L.  Co.  v.  Schuler.  155  Cal.  411.  412.  101  Pac. 
Rep.  307:  D.  I.  Nofaiger  L,  Co.  r.  Waters.  10  Cal.  App.  89.  92.  101  Pac. 
Rep.  3S:  Hoffman-Marks  Co.  v.  Spires.  154  Cal.  111.  115.  97  Pac.  Rep. 
152.  Se«  C.  Scheerer  &  Co.  v.  Dem  ing.  154  Cal.  138.  97  Pac.  Rep.  155. 

-  California.     See  Stockton  L.  Co.  v.   Schuler.  155  Cal.   411.  413.   101 
Pac.  Rep.  307. 

J  Compare  National  S.  Co.  v.  Wyandotte  C.  &  L.  Co..  76  Kan.  914. 
tt  Pac.  Rep.  Ill;  s.  c..  sub  nom.  Atkin  v.  Wyandotte  C.  &  L.  Co.. 
73  Kan.  76S.  S4  Pac.  Rep.  1040. 

«  California.  Hoffman-Marks  Co.  v.  Spires.  154  Cal.  111.  118.  97  Pac, 
Rep.  15!. 

See  |  358,  this  Supplement,  post. 

^  California.  C.  Scheerer  &  Co.  v.  Dem  ing,  154  Cal.  138.  141.  97  Pac, 
Rep.  155.  See  Hoffman-Marks  Co.  v.  Spires.  154  Cal.  111.  115.  97  Pac, 
Rep.  152:  Steiger  T.  C.  4  P.  Works  v.  City  of  Sonoma,  9  Cal.  App.  C98. 
703.  704.  100  Pac.  Rep.  714. 

•  California.     Stockton  L.  Co.  v.  Schuler.  155  Cal.  411.  412.  101  Pac. 
Rep.  307:  D.  I.  Nofxiger  L,  Co,  v.  Waters,  10  Cal.  App.  89,  92.  101  Pac. 
Rep.  3S:  H.  Raphael  Co,  v.  Qrote.  154  Cal.  137.  97  Pac.  Rep.   155.     See 
Hoffman-Marks    Co.    T.    Spires.    154    Cal.    111.    115.    97    Pac.    Rep.    152; 


EFFECT  OF  VALIDITY  OR  INVALIDITY.      28  318-321 

§  318.    Same.    How  far  subclaimants  are  bound  by  other 
terms  of  valid  original  contract.7 
Additional  matter  to  foot-note  II.8 
Additional  matter  to  foot-note  13.9 

§  319.    Effect  of  invalidity  of  statutory  original  contract. 
Generally. 
Additional  matter  to  foot-note  18. 10 

§  320.     Same.     Classes  affected  by  invalidity  of  contract. 
Additional  matter  to  foot-note  20. n 
Additional  matter  to  foot-note  21. 12 
Additional  matter  to  foot-note  23. 13 

§  321.  Same.  Effect  as  between  parties  to  the  contract. 
It  has  more  recently  been  held  in  California,  under  the 
provisions  of  the  statute  regarding  the  statutory  original 


Stelger  T.  C.  &  P.  "Works  v.  City  of  Sonoma,  9  Cal.  App.  698,  703,  704, 
100  Pac.  Rep.  714;  Dahlberg  v.  Girsch,  157  Cal.  324,  330,  107  Pac.  Rep. 
616. 

7  California.     See   C.    Scheerer   &   Co.   v.   Demingr,   154   Cal.    138,    141, 
97    Pac.    Rep.    153;    Hoffman-Marks    Co.    v.    Spires^   154    Cal.    Ill,    115, 
97  Pac.  Rep,  152;  McCue  v.  Jackman,  7  Cal.  App.  703,  95  Pac.  Rep.  673. 

See  i  1183,  Code  Civ.  Proc.,  as  amended,  Stats.  &  Amdts.  1911,  pp. 
1313  et  seq. 

Am  to  Hen  for  balance  of  contract  price  remaining;  in  the  hands  of 
the  owner:  See  Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  413,  101  Pac. 
Rep.  307. 

8  Waahlngrton.     See  Gate  City  L.  Co.  v.  City  of  Montesano   (Wash.), 
Ill  Pac.  Rep.  799. 

••  California.  See  Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  116, 
97  Pac.  Rep.  152,  explaining;  Hampton  v.  Christensen,  148  Cal.  729,  735, 
84  Pac.  Rep.  200. 

10  California.     See  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  483, 
94  Fac.  Rep.  773;  Hubbard  v.  Lee,  6  Cal.  App.  602,  606,  92  Pac.  Rep. 
744;  s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528;  Los  Angeles  P.  B.  Co.  v. 
Higgins,  8  Cal.  App.  514,  518,  97  Pac.  Rep.  414,  420. 

Statutory  original  contract  abolished  by  Stats.  &  Amdts.  1911,  pp. 
1313  et  seq.  See  H  214,  258,  269,  274,  281,  288,  this  Supplement,  ante, 
and  notes. 

11  California.     Los  Angeles  P.  B.  Co.  v.  Higrgrins,  8  Cal.  App.  514,  519, 
97  Pac.  Rep.  414,  420. 

See  note  to  preceding;  section. 

12  California.     See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
524,  526,  97  Pac.  Rep.  414,  420. 

is  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App,  514, 
518,  519,  97  Pac.  Rep.  414,  420. 


§§  321-323  MECHANICS'  LIENS — SUPPLEMENT. 

contract,  since  abolished,  that  the  failure  to  file  such  contract 
does  not  affect  the  contractual  rights  of  the  parties  in  any 
manner;  that  it  only  affects  the  funds  from  which  the  claim- 
ants' demands  may  be  paid  after  a  judgment  is  obtained 
and  the  right  of  lien  established ;  that  the  lien  law  does  not 
permit  a  judgment  for  any  more  than  the  lien  claimants 
agreed  to  take.  The  contract  is  valid  as  between  the  parties, 
but  not  as  to  lien  claimants  establishing  their  liens.  Such 
void  contract  was  held  by  the  Appellate  Court  to  be  the 
measure  of  compensation  and  the  measure  of  the  test  of  the 
contractor's  right  of  recovery;  but  on  rehearing  in  the 
Supreme  Court,  the  latter  Court  withheld  its  approval  of 
the  doctrine  that  the  original  contractor  can  recover  on  an 
unfiled  statutory  original  contract,  deeming  the  decision 
of  the  question  unnecessary.14 

Additional  matter  to  foot-note  25.15 

Additional  matter  to  foot-note  27. 1G 

§322.     Same.     Contractor's  lien  on  express  or  implied 
contract. 

Additional  matter  to  foot-note  31. 17 

§  323.     Same.     To  what  extent  contract  may  be  looked 
to  by  the  parties.     As  between  the  original  contractor  and 


14  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
524,  526,  on  rehearing  in  Supreme  Court,  97  Pac.  Rep.  414,  420;  Lacy 
Mfg.  Co.  v.  Los  Angeles  G.  &  E.  Co.,  12  Cal.  App.  37,  42,  106  Pac. 
Rep.  413. 

is  California.  Coghlan  v.  Quartararo  (Cal.  App.,  March  21,  1911), 
115  Pac.  Rep.  664,  666;  Los  Angeles  P.  B.  Co.  v.  Higglns,  8  Cal.  App. 
514,  520,  526,  97  Pac.  Rep.  414,  420;  on  hearing  in  Supreme  Court, 
97  Pac.  Rep.  420;  Baker  v.  Lake  E.  C.  &  I.  Co.,  7  Cal.  App.  482,  483, 
94  Pac.  Rep.  773;  Smith  v.  Dryden  (Cal.  App.,  March  10,  1911),  115 
Pac.  Rep.  455.  See  Burnett  v.  Qlas,  154  Cal.  255,  97  Pac.  Rep.  423; 
s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.  856. 

I"  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  supra. 

IT  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  520, 
526,  97  Pac.  Rep.  414,  420,  on  hearing  in  Supreme  Court,  97  Pac.  Rep. 
420. 

California.  Statutory  original  contract  abolished  by  Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.  See  §5  214,  258,  269,  274,  281,  288,  this  Supple- 
ment, ante,  and  notes. 


EFFECT  OF  VALIDITY  OR  INVALIDITY. 


323    324 


the  owner,  it  is  now  held  that  the  contract  becomes  the 
basis  of  recovery.18 

Additional  matter  to  foot-note  34.  19 

Additional  matter  to  foot-note  35.20 

§  324.  Same.  Lien  claimants,  other  than  original  con- 
tractor. The  effect  of  the  failure  of  the  contractor  or  owner 
to  file  the  statutory  original  contract  was  to  render  the 
contract  void  as  a  limitation  of  the  liability  of  the  owner 
to  the  claimants  under  the  original  contractor.21 

Additional  matter  to  foot-note  37.  22 

Additional  matter  to  foot-note  38.  23 

Additional  matter  to  foot-note  39.  24 

Additional  matter  to  foot-note  40.  25 

Additional  matter  to  foot-note  41.  26 

Additional  matter  to  foot-note  43.  27 

Additional  matter  to  foot-note  45.  28 


is  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  520, 
526,  97  Pac.  Rep.  414,  420;  on  hearing  in  Supreme  Court,  97  Pac.  Rep. 
420.  See  §  321,  this  Supplement,  ante. 

19  California.     See   Los  Angeles   P.   B.   Co.  v.   Higgins,   supra. 

20  California.     Los  Angeles  P.  B.  Co.  v.   Higgins,  supra. 

21  California.     Los   Angeles   P.   B.    Co.   v.   Higgins,   supra.     See   §  321, 
this  Supplement,  ante. 

22  California.     D.   I.  Nofziger  L.   Co.   v.  Waters,   10   Cal.   App.    89,   92, 
101  Pac.  Rep.   38;   Baker  v.   Lake  L.  C.   &  I.   Co.,   7  Cal.  App.   482,   483, 
94    Pac.    Rep.    733;    Barrett-Hicks   Co.    v.    Glas,   99   Pac.    Rep.    857,    859; 
s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub    nom.  Burnett  v.  Glas, 
154  Cal.  249,  97  Pac.  Rep.  423. 

23  California.     Smith  v.  Dryden   (Cal.  App.,  March  10,  1911),  115  Pac. 
Rep.   455. 

24  California.     D.   I.  Nofziger  L.   Co.   v.   Waters,    10   Cal.   App.    89,    92, 
101  Pac.   Rep.   38;   Hubbard  v.  Lee,   6   Cal.   App.   602,   606,   92   Pac.  Rep. 
744;   s.  c.,   10  Cal.  App.   477,  102  Pac.  Rep.   528. 

25  California.     Hubbard  v.  Lee,  supra. 

26  California.     See  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  374,  92  Pac. 
Rep.  844. 

27  California.     See  Lucas  v.  Rea,'  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  537;  Lucas  v.  Gobbi,  10  Cal.  App.  648,  650,  103  Pac.  Rep. 
157. 

28  California.     D.   I.  Nofziger  L.   Co.   v.   Waters,    10   Cal.   App.    89,   92, 
101    Pac.    Rep.    38;    Hoffman-Marks    Co.    v.    Spires,    154    Cal.    Ill,    116, 
97  Pac.  Rep.   152;   Hubbard  v.   Lee,   6   Cal.   App.   602,   606,   92   Pac.   Rep. 
744;   s.  c.,   10  Cal.  App.  477,  102  Pac.  Rep.  528;  Lucas  v.  Gobbi,  10  Cal. 
App.   648,   650,   103   Pac.   Rep.   157;  Lucas  v.   Rea,   10  Cal.  App.   641,   102 
Pac.   Rep.   822,   101   Pac.   Rep.   537.     See  Merced  L.   Co.   v.   Bruschi,   152 
Cal.  372,  374,  92  Pac.  Rep.  844;  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal. 


§§  324    325         MECHANICS'  LIENS— SUPPLEMENT.  J22 

Additional  matter  to  foot-note  46. 20 

§  325.  Same.  How  far  effective.  The  invalidity  of  the 
contract  does  not  make  the  owner  liable  for  the  negligence 
of  an  independent  contractor  to  third  parties  where  under 
the  terms  of  the  contract  the  owner  has  no  right  to  exercise 
any  control  over  the  manner  and  mode  of  doing  the  work 
by  the  contractor.30 

Additional  matter  to  foot-note  48. 31 

Additional  matter  to  foot-note  50.32 

App.  514,  518,  97  Pac.  Rep.  414,  420;  Burnett  v.  Qlas,  154  Cal.  249,  255. 
97  Pac.  Rep.  423. 

Colorado.     See  Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

28  California.  D.  I.  Nofziger  L.  Co.  v.  Waters,  10  Cal.  App.  89,  92, 
101  Pac.  Rep.  38.  See  Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  413. 
101  Pac.  Rep.  307. 

so  California.  Smith  v.  Dryden  (Cal.  App.,  March  10,  1911),  115  Pac. 
Rep.  455. 

si  California.  See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
519,  97  Pac.  Rep.  414,  420. 

82  Compare  National  S.  Co.  v.  Wyandotte  C.  &  L.  Co.,  76  Kan.  914, 
92  Pac.  Rep.  1111;  a.  c.,  sub.  nom.  Atkin  v.  Wyandotte  C.  &  L.  Co., 
73  Kan.  768.  84  Pac.  Rep.  1040. 


123  EXTINCTION  OF  CONTRACT.  SS  326-328 


CHAPTER  XVIII. 

BUILDING    CONTRACTS    (CONTINUED).      EXTINCTION    OF 
CONTRACT. 

§  326.  Alteration  of  original  contract.  Statutory  pro- 
visions. 

Additional  matter  to  foot-note  I.1 

§  327.  Same.  To  what  original  contracts  provisions  ap- 
plicable. 

Additional  matter  to  foot-note  4.2 

§  328.  Same.  Statutory  original  contract.  Modifications 
of  the  statutory  original  contract  when  not  filed  with  the 
recorder,  as  required  by  the  statute  before  the  amendment 
of  1911  to  the  Code  of  Civil  Procedure  of  California,  were 
of  no  effect.3 


1  Modifying;  contract   generally: 

California.  See  Purltas  L.  Co.  v.  Green  (Cal.  App.,  March  21,  1911), 
115  Pac.  Rep.  660;  Lacy  Mfg.  Co.  v.  Los  Angeles  G.  &  B.  Co.,  12  Cal. 
App.  37,  42,  106  Pac.  Rep.  413;  Boyd  v.  Bargagliotti,  12  Cal.  App.  228, 
237,  107  Pac.  Rep.  150.  See  §  1184,  Code  Civ.  Proc.,  as  amended,  Stats. 
&  Amdts.  1911,  pp.  1313  et  seq.,  changing  these  provisions. 

Kansas.  See  Smith  v.  Chicago  L.  &  C.  Co.  (Kan.,  March  11,  1911), 
114  Pac.  Rep.  372,  374. 

General  rules  as  to  modification  of  contracts:  See  Pearsall  v. 
Henry,  153  Cal.  314,  95  Pac.  Rep.  154,  159. 

Oregon.  Modification,  owing  to  strict  performance  producing  un- 
workmanlike and  defective  results:  See  Edmunds  v.  Welling  (Oreg.), 
110  Pac.  Rep.  533,  535. 

Utah.  Modification,  releasing  liability  under  original  contract; 
waiver  as  consideration:  See  Prye  v.  Kalbaugh,  34  Utah  306,  97  Pac. 
Rep.  331,  334. 

2  California.     The  statutory  original  contract  was  abolished  by  act 
of  May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.     See  §§  214,  258, 
269,  274,  281  and  288,  this  Supplement,  ante,  notes. 

s  California.  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  859;  s.  c., 
9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub.  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423.  See  §  1183,  Code  Civ. 
Proc.,  as  amended,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.,  requiring 
modifications  of  the  original  contract  to  be  filed  in  order  that  the 
liability  of  the  owner  may  be  limited  to  the  contract  price.  See,  also, 
note  to  preceding  section. 


§§  329-334          MECHANICS'  LIENS— SUPPLEMENT.  J24 

§  329.     Same.     Alterations,   how  evidenced.     Effect. 
Additional  matter  to  foot-note  15.4 
Additional  matter  to  foot-note  16.5 
Additional  matter  to  foot-note  17.6 

§  330.     Same.    Extending  credit. 
Additional  matter  to  foot-note  19.7 

§  331.    Same.    Payments. 
Additional  matter  to  foot-note  22.8 

§  332.     Same.     Power  of  architect  to  alter  contract. 
Additional  matter  to  foot-note  26.9 

§  333.    Novation. 

Additional  matter  to  foot-note  27. 10 

§  334.     Performance  of  contract.    How  considered  herein. 
Additional  matter  to  foot-note  32. 11 

4  California.     See  notes  to  §§  327,  328,  this  Supplement,  ante. 

Utah.  Release  of  old  contract  and  making  new  contract:  See 
Prye  v.  Kalbaugh,  34  Utah  306,  97  Pac.  Rep.  331. 

s  Oregon.  See  Williams  v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.),  110 
Pac.  Rep.  490,  491,  111  Pac.  Rep.  17.  Burden  of  proof  on  contractor 
to  show  modifications:  See  Adams  v.  MacKenzie  (Oreg.).  114  Pac. 
Rep.  460. 

e  Oregon.  Edmunds  v.  Welling  (Oreg.),  110  Pac.  Rep.  533,  535.  See 
McCue  v.  Whitwell,  156  Mass.  205,  30  N.  E.  Rep.  1134. 

7  California.     §1190,    Code    Civ.    Proc.,    was    amended    by    Stats.    & 
Amdts.   1911,  pp.   1313  et  seq. 

8  California.     See  §§  327  and  328,  this  Supplement,  ante,  notes. 
Waahlngton.     See  Kracht  v.  Empire  State  S.  Co.   (Wash.),  113  Pac. 

Rep.  773;    Keenan  v.  Empire  State  S.  Co.  (Wash.),  113  Pac.  Rep.  636,  638. 
8  See  Architect,  §§119  et  seq.,  this  Supplement,  ante,  and  notes.  - 

10  California.     See  Russell  v.   Ross,   157  Cal.    174,   181,    106   Pac.   Rep. 
583;  Lemon  v.  Hubbard,  10  Cal.  App.  471,  102  Pac.  Rep.  554. 

Accord  and  natlnf action: 

California.  See  Weller  v.  Stevens,  12  Cal.  App.  779,  108  Pac.  Rep. 
532;  Sirch  E.  &  T.  L.  v.  Garbutt,  13  Cal.  App.  435,  110  Pac.  Rep.  140,  141. 

Colorado.  See  Harvey  v.  Denver  &  R.  G.  R.  Co.,  44  Colo.  258,  99  Pac. 
Rep.  31,  33. 

Washington.  See  Seattle  R.  &  S.  Ry.  Co.  v.  Seattle-Tacoma  P.  Co., 
(Wash.),  116  Pac.  Rep.  289. 

Wyoming.  See  City  of  Rawlins  v.  Jungquist,  16  Wyo.  403,  96  Pac. 
Rep.  144. 

11  Utah.     Place  of  performance   of  contract   in   another   state:     See 
generally,  Lawson  v.  Tripp,  34  Utah  28,  95  Pac.  Rep.  520. 


125  EXTINCTION  OF  CONTRACT.  §§  335,339 

§  335.     Same.     Original  contract  valid. 

Additional  matter  to  foot-note  37. 12 
Additional  matter  to  foot-note  38. 13 
Additional  matter  to  foot-note  39. 14 

§  336.     Same.    Original  contract  void. 

Additional  matter  to  foot-note  41. 15 

§  337.     Same.    Time  of  performance. 
Additional  matter  to  foot-note  44. 16 

§  338.     Same.     General  rule.     Conditions. 
Additional  matter  to  foot-note  45. 17 
Additional  matter  to  foot-note  46. 18 
Additional  matter  to  foot-note  47. 19 

§  339.  Same.  Excuses  for  non-performance.  The  con- 
tractor is  not  absolved  from  performance  of  the  contract  by 
natural  obstacles  intervening,  unless  they  render  perform- 

12  California.  See  C.  Scheerer  &  Co.  v.  Deming,  154  Cal.  138,  97  Pac. 
Rep.  155. 

is  California.  See  Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  115, 
97  Pac.  Rep.  152. 

14  Kansas.  See  Smith  v.  Chicago  L.  &  C.  Co.  (Kan.),  114  Pac.  Rep. 
372,  374. 

is  California.     See  §§  327  and  328,  this  Supplement,  ante,  notes. 

16  New  Mexico.  But  held  a  question  of  law  when  it  depends  upon 
the  construction  of  a'  written  contract  or  undisputed  extrinsic  evi- 
dence: Cowles  v.  Hagerman  (N.  M.),  110  Pac.  Rep.  843,  844;  s.  c., 
Hagerman  v.  Cowles,  14  N.  M.  422,  94  Pac.  Rep.  946;  Neher  v.  Viviani 
(N.  M.),  110  Pac.  Rep.  695,  697. 

When  time  of  performance  not  stated,  reasonable  time  implied: 

New  Mexico.  Hagerman  v.  Cowles,  14  N.  M.  422,  94  Pac.  Rep.  946; 
s.  c.,  Cowles  v.  Hagerman  (N.  M.),  110  Pac.  Rep.  843. 

Oregon.     Browne  v.  Sharkey  (Oreg.),  115  Pac.  Rep.  156. 

Washington.     Berlin  M.  Works  v.  Miller,  110  Pac.  Rep.  422,  424. 

See  §  225,  this  Supplement,  ante. 

IT  California.  See  Dahlberg  v.  Girsch,  157  Cal.  324,  330,  107  Pac. 
Rep.  616. 

Colorado.  See  Lombard!  v.  Overland  D.  &  R.  Co.,  41  Colo.  253, 
92  Pac.  Rep.  965,  966. 

is  Utah.     Ryan  v.  Curlew  I.  &  R.  Co.   (Utah),  104  Pac.  Rep.  218,  220. 

19  California.  See  Carlson  v.  Sheehan,  157  Cal.  692,  698,  109  Pac. 
Rep.  29. 


§§  339    340         MECHANICS'  LIENS— SUPPLEMENT.  J26 

ance  practically  impossible;  mere  difficulty,  or  unusual  or 
unexpected  expense  will  not  excuse  him.20 

Additional  matter  to  foot-note  49.21 

Additional  matter  to  foot-note  50. 22 

Additional  matter  to  foot-note  53.2:{ 

Additional  matter  to  foot-note  57.24 

Additional  matter  to  foot-note  58. 25 

Additional  matter  to  foot-note  59.26 

§  340.     Same.    Performance  of  warranty. 
Additional  matter  to  foot-note  62. 27 


20  California.     Carlson  v.  Sheehan,  157  Cal.  682,  697,  109  Pac.  Rep.  29. 
But  trifling  Imperfection*  do  not  affect  the  right  to  recover:     A.  D. 

McAdam  v.  Russell,  112  Pac.  Rep.  345;  but  held  otherwise,  If  the 
owner  has  not  accepted  the  work  or  entered  Into  the  use  and  occupa- 
tion of  the  building,  where  the  contract  provides  that  in  case  of 
destruction  of  the  building,  the  contractor  should  lose  the  unpaid 
installments:  Seebach  v.  Kuhn,  9  Cal.  App.  485,  489,  99  Pac.  Rep.  723. 

21  Compare  Dahlberg  v.  Girsch,  157  Cal.  324,  330,  107  Pac.  Rep.  616. 

22  California.     Lacy   Mfg.   Co.   v.   Los   Angeles  G.   &   E.   Co.,    12   Cal. 
App.  37,  42,  106  Pac.  Rep.  413. 

Kanaaa.  Collier  v.  Monger  (Kan.),  113  Pac.  Rep.  385;  8.  c.,  75  Kan. 
550.  89  Pac.  Rep.  1011. 

23  Prevention  of  performance t 

California.  Carlson  v.  Sheehan,  157  Cal.  692,  695,  109  Pac.  Rep.  29 
(and  other  matters  excusing  performance) ;  Puritas  L.  Co.  v.  Green 
(Cal.  App.),  115  Pac.  Rep.  660;  Boyd  v.  Bargagliotti,  12  Cal.  App.  228, 
237,  107  Pac.  Rep.  170.  See  Hill  v.  Clark,  7  Cal.  App.  609,  610,  95  Pac. 
Rep.  382;  Seebach  v.  Kuhn,  9  Cal.  App.  485,  490,  99  Pac.  Rep.  723. 

Colorado.  Lombard!  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92  Pac. 
Rep.  695. 

24  California.     Beck  v.  Schmidt,   13  Cal.  App.   448,  110  Pac.  Rep.   455, 
456;    Fairchild-Gilmore-Wilton   Co.   v.   Southern- R.   Co.,    158   Cal.    264, 
110   Pac.    Rep.    951,    955.     See   Carlson    v.    Sheehan,    157  -Gal.    692.    696. 
109  Pac.  Rep.  29. 

KnuMux.     Bailey  v.  Fredonia  G.  Co.,  82  Kan.  746,  109  Pac.  Rep.  411. 

MlMHourl.     See  Bean  v.  Miller,  69  Mo.  384. 

Re«clB»lon: 

California.  See  Carlson  v.  Sheehan,  157  Cal.  692,  696,  109  Pac. 
Rep.  29. 

Idaho.     See  Tatum  v.  Coast  L.  Co.,  16  Idaho  471,  101  Pac.  Rep.  957. 

Oregon.     See  Holland  v.  Rhoades  (Oreg.),  106  Pac.  Rep.  779. 

Washington.  See  Evans  v.  Oregon  &  W.  R.  Co.,  58  Wash.  429,  108 
Pac.  Rep.  1095;  Young  Men's  Christian  Assoc.  v.  Gibson,  58  Wash.  307, 
108  Pac.  Rep.  766,  769. 

28  California.  Compare  Dahlberg  v.  Girsch,  157  Cal.  324,  330,  107 
Pac.  Rep.  616. 

26  California.     See  Fairchild-Gilmore-Wilton  Co.  v.  Southern  R.  Co., 
158  Cal.  264,  110  Pac.  Rep.  951,  955. 

27  Kantian.     See   International   F.   Co.   v.   Caney   I.   &  C.   Co.    (Kan.), 
115  Pac.  Rep.   635. 


127  EXTINCTION  OF  CONTRACT.  88  34 }    342 

§  341.     Same.     ' '  Trifling  imperfection. ' ' 
Additional  matter  to  foot-note  63. 28 
Additional  matter  to  foot-note  69. 29 

§  342.     Same.      Substantial    performance    generally    re- 
quired. 

Additional  matter  to  foot-note  71. 30 


Washington.  See  Yundt  v.  Schultz-Degginger  Co.  (Wash.),  113  Pac. 
Rep.  760. 

28  Trifling;  imperfection: 

Oregon.  Not  to  extend  time  for  filing;  claim  of  lien:  Coffey  v. 
Smith,  52  Greg".  538,  97  Pac.  Rep.  1079,  52  Oreg.  545,  97  Pac.  Rep.  108, 
52  Oreg.  546,  97  Pac.  Rep.  1082;  Crane  Co.  v.  Ellis  (Oreg.),  114  Pac. 
Rep.  475. 

Washington.  See  A.  D.  McAdam,  Inc.  v.  Russell  (Wash.),  112  Pac. 
Rep.  345. 

29  Oregron.     Edmunds  v.  Welling  (Oreg.),  110  Pac.  Rep.  533. 

so  California.  Hill  v.  Clark,  7  Cal.  App.  609,  611,  95  Pac.  Rep.  382. 
See  Seebach  v.  Kuhn,  9  Cal.  App.  485,  488,  97  Pac.  Rep.  723. 

Colorado.  Lombardi  v.  Overland  D.  &  R.  Co.,  v.  Colorado  I.  W.  Co. 
(Colo.),  Ill  Pac.  Rep.  553,  555. 

Montana.     See  Piper  v.  Murray   (Mont.),  115  Pac.  Rep.  669,  672. 

Oregron.  Where  there  is  a  substantial  performance  of  a  building 
contract,  although  not  an  exact  performance,  the  rules  by  which 
proper  deductions  are  to  be  ascertained  are  stated  as  follows: 

"In  case  of  entire  neglect  to  furnish  an  item  of  labor  or  material, 
or  in  case  of  a  defect  which  may  be  easily  remedied  without  taking 
down  and  reconstructing  a  substantial  portion  of  the  building,  this 
allowance  should  equal  the  reasonable  expense  of  supplying  or  cor- 
recting the  defect. 

"In  case  of  a  defect  which  could  only  be  remedied  by  taking  down 
and  reconstructing  some  substantial  portion  of  the  building,  the  allow- 
ance should  be  the  amount  which  the  building  is  worth  less  by  reason 
of  the  defect  than  the  contract  price":  Edmunds  v.  Welling  (Oreg.), 
110  Pac.  Rep.  533,  535,  citing  and  quoting  from  Manitowoc  S.  B. 
Works  v.  Manitowoc  G.  Co.,  120  Wis.  1,  97  N.  W.  515. 

In  the  case  of  Manitowoc  S.  B.  Works  v.  Manitowoc  G.  Co.  120  Wis.  1, 
97  N.  W.  Rep.  515,  "the  court  makes  three  exceptions  from  the  rule  that 
strict  compliance  with  the  contract  is  essential  to  recovery: 

"  'First,  in  favor  of  laborers  who  contract  to  perform  personal  serv- 
ices, and  without  fault  of  either  party  fail  to  complete  perform- 
ance; *  *  * 

"  'Secondly,  in  building;  contracts,  where  the  contractor  constructs 
something  on  the  land  of  another  which  by  oversight,  but  in  good 
faith  effort  to  perform,  fails  to  entirely  satisfy  the  contract,  but  is  so 
substantially  in  compliance  therewith  that  the  structure  fully  accom- 
plishes the  purpose  of  that  contracted  for,  and  the  other  party  vol- 
untarily accepts  the  benefit  thereof,  or  where  the  failure  is  mere 
inconsiderable  incompleteness,  and  the  expense  of  completion  is  easy 
of  ascertainment;  *  *  * 

"  'Thirdly,  where  the  contractor  supplies  an  article  different  from  or 
inferior  to  that  promised,'  which  with  knowledge  thereof  is  accepted. 


S  342 


MECHANICS'  LIENS—  SUPPLEMENT. 


"The  court  conclinleii  from  these  exceptions  that  the  question  is  not 
what  will  reasonably  compensate  the  contractor,  but  what  can  the 
purchaser  pay  without  being  put  in  worse  position  than  if  the  contract 
had  been  performed.  The  same  principle  is  recognized  in  Gove  &  Co. 
v.  I.  C.  M.  &  M.  Co.*  16  Oreg.  96,  17  Pac.  Rep.  740,  where  it  is  held 
that,  if  the  contract  has  been  substantially  fulfilled,  the  plaintiff  is 
entitled  to  maintain  an  action  upon  it,  the  defendant  being  entitled 
to  such  a  deduction  from  the  contract  price  as  will  enable  him  to 
complete  the  work  in  exact  accordance  with  the  contract":  Edmunds 
v.  Welling  (Oreg.),  110  Pac.  Rep.  533,  535. 

Utah.  A  party  entering  into  a  building  contract  may  not  abandon 
the  contract  and  recover  more  than  the  contract  price  upon  a  quan- 
tum meruit;  "but  th<ere  may  be  cases  where  the  stipulations  of  the 
contract  have  been  departed  from  either  by  the  express  consent  of 
the  parties  or  by  implication  through  their  conduct  in  making 
changes  in  materials,  workmanship,  or  structure  by  reason  of  which 
It  may  become  a  matter  of  doubt  whether  the  contract  as  a  whole 
has  been  abandoned  or  not. 

In  such  cases  the  contractor  may,  in  the  first  instance,  sue  as  upon 
a  quantum  meruit,  and  leave  it  to  the  defendant  to  set  up  and  insist 
upon  the  contract  for  the  purpose  of  limiting  the  recovery  to  the 
price  stipulated  therein. 

The  defendant  may  in  such  a  case  likewise  insist  that  the  stipula- 
tions of  the  contract  remain  in  full  force  and  have  not  been  per- 
formed, and  may  demand  damages  for  a  non-compliance  with  the 
terms  of  the  express  contract. 

The  contractor  may,  however,  in  such  cases,  also  base  his  action 
upon  both  the  contract  and  upon  a  quantum  meruit  by  setting  up  the 
former  in  one  count  and  the  latter  in  another  in  his  complaint. 

In  all  such  cases  a  recovery  by  either  party  will  be  allowed  in  ac- 
cordance with  the  facts  developed  at  the  trial  and  the  law  applicable 
thereto. 

Again,  a  contractor,  in  case  the  contract  is  fully  performed,  and 
nothing  remains  except  to  obtain  payment,  may  sue  to  recover  the 
amount  unpaid  without  specially  declaring  upon  the  express  contract. 

These  propositions  have  been  discussed  and  passed  upon  many  times 
by  the  courts,  and  are  illustrated  and  applied  in  the  following  cases: 

Todd  v.  Huntington,  13  Oreg.  9,  4  Pac.  Rep.  295;  Schwartzel  v. 
Karnes,  2  Kan.  App.  782,  44  Pac.  Rep.  41;  Board  of  Commissioners  v. 
Gibson,  158  Ind.  471,  63  N.  E.  Rep.  982;  Moore  v.  Gaus  Sons'  Mfg.  Co.. 
113  Mo.  98,  20  S.  W.  Rep.  975;  Burgess  v.  Helm,  24  Nev.  242,  51  Pac. 
Rep.  1025;  Wilson  v.  Smith,  61  Cal.  209. 

Undoubtedly,  one  may  not  depart  from  the  stipulations  of  his  con- 
tract and  then  sue  and  recover  as  upon  a  quantum  meruit.  Neither 
is  the  contractor  prevented  from  recovery  upon  a  contract  in  case  he 
has  not  literally  complied  with  all  the  terms  and  conditions  therein 
imposed. 

A  substantial  compliance,  if  made  in  good  faith,  and  so  as  to  make 
the  thing  contracted  for  useful  and  beneficial  to  the  owner  for  the 
purposes  for  which  it  was  intended  and  in  compliance  with  the  true 
intent  and  spirit  of  the  contract,  in*  most  instances,  is  a  sufficient 
compliance  to  permit  a  recovery  upon  the  contract,  with  the  right  of 
the  owner  to  recoup  any  damages  he  may  have  sustained  by  reason 
of  the  contractor's  failure  to  literally  comply  with  the  terms  of  the 
contract. 

While  the  cases  can  not  all  be  reconciled,  and  the  courts  of  some 
states  adhere  to  one  rule,  while  those  of  other  states  follow  another, 


129  EXTINCTION  OF  CONTRACT.  28  )M2-'i45 

Additional  matter  to  foot-note  72.31 
Additional  matter  to  foot-note  74.32 

§  343.     Same.  General  principles. 
Additional  matter  to  foot-note  75. 33 
Additional  matter  to  foot-note  76. 34 

§  344.     Same.     Slight  difference  in  value. 

Additional  matter  to  foot-note  77. 35 

§  345.     Same.     Conveniences. 
Additional  matter  to  foot-note  79. 36 


we  think  the  trend  of  modern  decision  is  to  the  effect  as  outlined 
above":  Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.  1004,  1006,  1007; 
Ryan  v.  Curlew  I.  &  R.  Co.  (Utah),  104  Pac.  Rep.  218,  221. 

Washington.  See  A.  D.  McAdam,  Inc.,  v.  Russell  (Wash.),  112  Pac. 
Rep.  345;  Sweatt  v.  Bonne,  110  Pac.  Rep.  617;  Lazella  v.  Empire  State 
S.  Co.,  58  Wash.  589,  109  Pac.  Rep.  195,' 196. 

Wisconsin.  See  Sherry  v.  Madler,  123  Wis.  621,  101  N.  W.  Rep.  1095; 
Manitowoc  S.  B.  Works  v.  Manitowoc  G.  Co.,  120  Wis.  1,  97  N.  W. 
Rep.  515;  Foeller  v.  Heintz,  137  Wis.  169,  118  N.  W.  Rep.  543,  24  L.  R.  A. 
(N.  S.),  327. 

si  Kansas.  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92 
Pac.  Rep.  833,  888,  889. 

Oregon.     Edmunds  v.  Welling    (Oreg.),  110  Pac.  Rep.   533. 

Utah.     See  Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.  1004. 

Washington.     Mortimer  v.  Dirks,  57  Wash.  402,  107  Pac.  Rep.  184. 

32  California.     Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  229,  233,  101  Pac. 
Rep.   691. 

Colorado.     Ross  M.  &  M.  Co.  v.  Sethman    (Colo.),  114  Pac.  Rep.   287. 

Oregon.     Adams  v.  MacKenzie    (Oreg.),   114   Pac.  Rep.   460. 

Acceptance   of   work  is   waiver   of  strict   performance: 

California.  Sirch  E.  &  T.  L.  v.  Garbutt,  13  Cal.  App.  435,  110  Pac. 
Rep.  140,  141. 

Oregon.  Williams  v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.),  Ill  Pac. 
Rep.  17;  s.  c.,  110  Pac.  Rep.  490. 

33  Washington.     Mortimer  v.  Dirks,  57  Wash.  402,  107  Pac.  Rep.  184. 

34  California.     Compare    Dahlberg    v.    Girsch,    157    Cal.    324,    330,    107 
Pac.  Rep.   616. 

Illinois.     See  Keeler  v.  Herr,  157  II).  57,  41  N.  E.  Rep.  750. 
Iowa.     See  Smith  v.  Bristol,  33  la.   24. 

Kansas.  See  McCullough  v.  S.  J.  Hayde  C.  Co.,  82  Kan.  734,  109  Pac. 
Rep.  176. 

Missouri.     See  Hayster  v.  Owen,  61  Mo.   270. 

35  California.     See    §  1187,   Code   Civ.   Proc.,   as   amended   May   1,    1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  sea.). 

36  California.     See   §  1187,  Code   Civ.   Proc.,   as  amended  May   1,   1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

Bloom's  Sup. — 9 


§§  346-351  MECHANICS'  LIENS — SUPPLEMENT. 

§  346.     Same.    Erection  of  structure  in  part  only. 
Additional  matter  to  foot-note  80.:IT 

§347.     Same.    "Completion"  of  mining  claim. 
Additional  matter  to  foot-note  82.:{8 

§  348.  Statutory  equivalents  of  completion  for  the  pur- 
pose of  filing  claims  of  lien. 

Additional  matter  to  foot-note  83.39 

S  349.     Same.    Statutory  provisions. 
Additional  matter  to  foot-note  85. 40 

£  350.  Same.  Occupation  and  use.  Scope  and  object  of 
statutory  provisions.  Occupation  and  use  of  the  structure,  or 
acceptance  of  the  same,  must  be  coupled  with  cessation  from 
labor  for  thirty  days  to  constitute  constructive  or  statutory 
completion  for  the  purpose  of  filing  claims  of  lien.41 

Additional  matter  to  foot-note  86.42 

£  351.  Same.  Character  of  occupation  or  use.  Occupa- 
tion of  a  structure  is  not  notice  of  completion,  when  the  orig- 
inal contract  expressly  provides  that  the  completion  pay- 
ment shall  not  be  made  until  acceptance,  and  such  accept- 

37  California.     But  see  Farnham  v.  California  S.  D.   &   T.  Co.,   8  Cal. 
App.  266,  269,  96  Pac.  Rep.  728. 

See   §  351,   this   Supplement,   post,   and   notes. 

38  See  51187,  Code  Civ.  Proc.,  as  amended  May   1,  1911    (Stats,  and 
Anidts.   1911,  pp.   1313  et  seq.). 

so  California.  See  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  486, 
94  Pac.  Rep.  773. 

See  amendment  to  §  1187,  Code  Civ.  Proc.,  Stats.  &  Amdts.  1911,  pp. 
1313  et  seq. 

The  statutory  equivalents  of  completion  for  the  purpose  of  filing 
claims  of  Hen  have  been  termed  by  the  court  "constructive  comple- 
tion": Robison  v.  Mitchell  (Cal.  Sup.),  114  Pac.  Rep.  984,  987. 

40  California.     See   amendment   to    §1187,    Code   Civ.   Proc.,   Stats.    & 
Amdts.  1911,  pp.  1313  et  seq. 

41  California.     Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  94  Pac. 
Rep.  773;  Robison  v.  Mitchell   (Cal.  Sup.),  114  Pac.  Rep.  984,  988. 

See  !i  354-357,  432-433,  this  Supplement,  post,  and  notes. 

42  California.     Now  held:     Such  occupation  and  cessation  must  have 
concurred:     Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  94  Pac.  Rep. 
773.     See  note  to  f  349,  this  Supplement,  ante. 


EXTINCTION  OF  CONTRACT.  SS  351-353 

ance  is  expressly  refused  during  such  occupation  until  a 
later  date,  when  such  occupation  is  by  express  consent  of 
the  claimant  subject  to  the  right  of  the  claimant  to  proceed 
with  the  completion.43 

Additional  matter  to  foot-note  89. 44 

Additional  matter  to  foot-note  90. 45 

§  352.     Same.    Void  contract. 

Additional  matter  to  foot-note  91. 46 

§  353.  Same.  Acceptance.  Waiver.  If  the  owner  by 
his  own  declaration  intentionally  misleads  the  claimant  to 
believe  that  the  building  is  not  completed,  and  the  claimant 
acts  upon  such  declaration  by  reason  thereof,  the  owner 
will  not  be  permitted  to  falsify  such  declaration,  and  he  will 
be  estopped  from  claiming  that  the  claimant's  claim  of  lien 
was  not  filed  in  time.47  It  is  not  necessary  that  the  entire 
work  shall  be  completed  before  there  can  be  an  acceptance 
of  any  of  the  work.48 

Additional  matter  to  foot-note  97. 49 


43  California.      Otis  B.  Co.  v.  Brainerd,  10  Cal.  App.  229,  232. 

44  Idaho.     Latent    and    patent    defects:     See    Steltz    v.    Armory    Co., 
15  Idaho  551,  99  Pac.  Rep.  98,  100. 

45  California.     See  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266,   269,  96  Pac.  Rep.   728. 

46  California.     §1187,    Code    Civ.    Proc.,    was    amended    by    Stats.    & 
Amdts.   1911,  pp.  1313  et  seq.,  and  the  statutory  original  contract  was 
aboMshed  by  said  act. 

47  California.     Hubbard  v.  Lee,  6  Cal.  App.  602,  608,  92  Pac.  Rep.  744; 
s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528. 

See  Minneapolis  Trust  Co.  v.  Maxfleld,  81  Minn.  28,  83  N.  W.  Rep.  463. 

48  California.     Sirch  E.  &  T.  L.  v.  Garbutt,  13  Cal.  App.  435,  110  Pac. 
Rep.  140,  141. 

49  California.     Sirch  E.  &  T.  L.  v.  Garbutt,  13  Cal.  App.  435,  110  Pac. 
Rep.    140,   141;   Lacy  M.   Co.   v.   Los   Angeles  G.   &  E.   Co.,   12   Cal.   App. 
37,  40,  106  Pac.  Rep.  413. 

Colorado.  Ross  M.  &  M.  Co.  v.  Sithman  (Colo.),  114  Pac.  Rep.  287. 
Compare  Town  of  Sterling  v.  Kurd,  44  Colo.  436,  98  Pac.  Rep.  174  (ac- 
ceptance by  engineer). 

New  Mexico.  Cowles  v.  Hagerman  (N.  M.),  110  Pac.  Rep.  843,  845; 
s.  c.,  sub.  nom.  Hagerman  v.  Cowles,  14  N.  M.  422,  94  Pac.  Rep.  946. 

Oklahoma.  See  Minnetonka  O.  Co.  v.  Cleveland  V.  B.  Co.  (Okl.),  Ill 
Pac.  Rep.  326. 

Oregon.  Edmunds  v.  Welling  (Oreg.),  110  Pac.  Rep.  533,  535;  Wil- 
liams v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.),  Ill  Pac.  Rep.  17,  110  Pac. 
Rep.  490. 


§§  353-356  MECHANICS'  LIENS  —  SUPPLEMENT. 

Additional  matter  to  foot-note  99.50 
Additional  matter  to  foot-note  100.r>1 
Additional  matter  to  foot-note  101.  52 


§  354.  Same.  Cessation  from  labor  for  thirty  days. 
Statutory  provision.  Under  the  statute,  as  it  existed  prior 
to  the  amendments  of  191  1,53  the  original  contract  was  not 
deemed  completed  until  there  had  been  a  cessation  from 
labor  for  thirty  days  in  addition  to  the  occupation  of  the 
structure  by  the  owner,  or  his  agent  ;  that  is,  the  occupation 
and  use,  or  acceptance,  had  to  be  coupled  with  such  cessa- 
tion to  constitute  a  constructive  or  statutory  completion  for 
the  purpose  of  filing  claims  of  lien.54 

Additional  matter  to  foot-note  102.53 

§  355.     Same.    Scope  of  provision. 

Additional  matter  to  foot-notes  103  and  104.56 

§  356.     Same.    Character  of  cessation. 
Additional  matter  to  foot-note  106."'7 


Utah.     Ryan  v.  Curlew  I.  &  R.  Co.   (Utah),  104  Pac.  Rep.  218,  220. 

Waahlngrton.  Acceptance  of  severable  part,  under  severable  con- 
tract: Compare  Berlin  M.  Works  v.  Miller  (Wash.),  110  Pac.  Rep. 
422,  424. 

so  California.  Compare  Dahlbergr  v.  Girsch,  157  Cal.  324,  330,  107  Pac. 
Rep.  616. 

Idaho.  Owner  taking;  ponaeaslon  of  building:;  latent  and  patent  de- 
fects: See  Steltz  v.  Armory  Co.,  15  Idaho  551,  99  Pac.  Rep.  98,  100. 

51  California.     See  §  350,  ante,  and  §§  354,  357,  432  and  4§3,  this  Sup- 
plement, post,  and  notes. 

52  Washington.     See  Cascade  L.   Co.  v.   Aetna  I.  Co.,  56  Wash.   503, 
106  Pac.  Rep.   158;  Minneapolis  S.  &  M.  Co.  v.  Aetna  I.  Co.,  56  Wash. 
699,   106  Pac.  Rep.  160. 

63  California.     §1187,  Code  Civ.   Proc. 

64  California.     Baker  v.  Lake  L.  &  I.  Co.,  7  Cal.  App.  482,  484,  94  Pac. 
Rep.  773  (distinguishing  a  number  of  cases);  Robison  v.  Mitchell  (Cal. 
Sup.),   114  Pac.  Rep.   984,  988.     See,  also,   §§350  and  357,  this  Supple- 
ment,   ante,    and    notes;    and    §§  432,    433,   this    Supplement,    post,    and 
notes. 

55  California.  This  provision  survives  in  the  amendment  to  §1187, 
Code  of  Civ  Proc.,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.  See  §  350,  this 
Supplement,  ante,  note. 

&6  California.     See  note  to  §  354,  this  Supplement,  ante. 

BT  California.     See  note  to  §  354,  this  Supplement,  ante. 

Idaho.  Compare  Valley  L.  Co.  v.  Driessel,  13  Idaho  662,  93  Pac. 
Rep.  765. 


133  EXTINCTION  OF  CONTRACT.  SS  357.359 

§  357.     Same.     As  affected  by  validity  or  invalidity  of 
original  contract.58 

Additional  matter  to  foot-note  108. 39 

§  358.     Abandonment  of  original  contract. 

Additional  matter  to  foot-note  114.60 

§359.     Same.    Owner's  liability. 
Additional  matter  to  foot-note  115. 61 
Additional  matter  to  foot-note  117. 62 


Missouri.  Compare  Darling  L.  Co.  v.  Harris,  107  Mo.  App.  148,  80 
S.  W.  Rep.  688. 

Nevada.  See  Tonopah  L.  Co.  v.  Nevada  A.  Co.,  30  Nev.  445,  97  Pac. 
Rep.  636,  639. 

Wisconsin.  See  Fitzgerald  v.  Walsh,  107  Wis.  92,  82  N.  W.  Rep.  717, 
81  Am.  St.  Rep.  824. 

58  California.     But    see    §350,    this    Supplement,    ante,   note;    and    see 
Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Gal.  App.  482,  94  Pac.  Rep.  773. 

Statutory  original  contract  abolished  by  Stats.  &  Amdts.  1911,  pp. 
1313  et  seq. 

59  California.     Johnson   v.  La  Grave,   102   Cal.   324,   36   Pac.   Rep.    651, 
and  Baker  v.   Lake  L.   C.   &  I.   Co.,   7   Cal.   App.   482,    94  Pac.   Rep.    773 
(requiring  occupation  and  use,  or  acceptance,  to  be  coupled  with  ces- 
sation of  labor  for  thirty  days  to  constitute  constructive  or  statutory 
completion  for  the  purpose  of  filing  claims  of  lien)   supported  as  to 
point  just  stated,  but  both  overruled,  so  far  as  repugnant,  by  Robison 
v.  Mitchell    (Cal.  Sup.),   114  Pac.  Rep.  984,  988. 

See  §  433,  this  Supplement,  post,  note. 

eo  California.  See  C.  Scheerer  &  Co.  v.  Deming,  154  Cal.  138,  144, 
97  Pac.  Rep.  153;  Vulcan  I.  Works  v.  Cook  (Cal.  App.),  114  Pac.  Rep. 
995;  Dahlberg  v.  Girsch,  157  Cal.  324,  330,  107  Pac.  Rep.  616;  O'Brien  v. 
Garibaldi  (Cal.  App.),  115  Pac.  Rep.  249,  252. 

Rights  of  assignee  of  contractor  who  abandons  work:  O'Brien  v. 
Garibaldi  (Cal.  App.),  115  Pac.  Rep.  249. 

Oregon.     See   Edmunds  v.   Welling    (Oreg.),    110   Pac.   Rep.    533,    534;- 
Laughlin  v.  Connors,  54  Oreg.  184,   102  Pac.  Rep.   783. 

Utah.     See  Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.  1004. 

61  Abandonment,   act    and   intent: 
California.     Turner  v.  Markham,   155   Cal.   562. 

Oregon.     Watts  v.  Spencer  (Oreg.),  94  Pac.  Rep.  39  (water  rights). 

Wyoming.  Jones  v.  'Kepford,  17  Wyo.  468,  100  Pac.  Rep.  923  (aban- 
donment of  homestead);  Phillips  v.  Hamilton,  17  Wyo.  41,  95  Pac.  Rep. 
846  (abandonment  of  lease). 

62  California.     Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  115,  97  Pac. 
Rep.  152;  C.  Scheerer  &  Co.  v.  Deming,   154  Cal.  138,  144,  97  Pac.  Rep. 
155;  McCue  v.  Jackman,  7  Cal.  App.  703,  704,  95  Pac.  Rep.  673;  Steiger 
T.  C.  &  P.  Co.  v.  City  of  Sonoma,   9  Cal.  App.   698,   100  Pac.   Rep.   714; 
Duffy  L.  Co.  v.  Stanton,  9  Cal.  App.  38,  98  Pac.  Rep.  38. 

Colorado.  Under  §  4025,  Rev.  St.  1908,  rule  In  case  of  abandonment: 
Rice  v.  Rhone  (Colo.),  Ill  Pac.  Rep.  585,  587;  Hottel  v.  Poudre  Valley 
R.  Co.,  41  Colo.  370,  92  Pac.  Rep.  918,  921. 


§§  359    360         MECHANICS'   LIENS — SUPPLEMENT. 

Additional  matter  to  foot-note  118.03 
Additional  matter  to  foot-note  119.04 

§  360.     Same.    -Justification  for  abandonment. 
Additional  matter  to  foot-note  122.05 
Additional  matter  to  foot-note  123.°° 


\\nsliinicton.  See  Gordon  v.  Glllespie,  58  Wash.  62,  109  Pac.  Rep. 
109.  110;  Young  Men's  Christian  Assoc.,  58  Wash.  307,  108  Pac.  Rep. 
766,  769. 

63  California.     When  under  the  rule  declared  by  |  1200,  as  It  stood 
before  the  amendment  of  May  1,  1911   (Stats.  &  Amdts.  1911,  pp.  1313 
et  seq.)  there  was  no  part  of  the  contract  price  applicable  to  the  pay- 
ment of  liens,  no  recovery  against  the  property  of  the  owner  could  be 
had;    if  after   making  the   computation   required   by    that   section,   no 
balance  remains,  there  is  nothing  for  the  lien  claimants:     Hoffman- 
Marks  Co.  v.  Spires,  154  Cat.  Ill,  115,  97  Pac.  Rep.  152,  distinguishing 
Hampton  v.  Christensen,  148  Cal.  729,  84  Pac.  Rep.  200,  as  not  a  case 
of  abandonment. 

The  construction  given  In  the  cane  of  Hoffman-Mark*  Co.  v.  Spires, 
supra,  to  $  1200,  Code  Civ.  Proc.,  as  It  stood  before  the  amendment  of 
1911,  supra,  is  not  unconstitutional:  C.  Scheerer  &  Co.  v.  Demlng, 
154  Cal.  138,  97  Pac.  Rep.  155. 

64  California.     Duffy  L.  Co.  v.  Stanton,  9  Cal.  App.  38,  98  Pac.  Rep.  38. 

65  California.     Carlson  v.  Sheehan,  157  Cal.  692,  697,  109  Pac.  Rep.  29. 
ee  California.     See   Carlson    v.    Sheehan,    157    Cal.    692,    698,    109    Pac. 

Rep.  29. 


135  CLAIM  OF  LIEN.  §§  361-364 


CHAPTER  XIX. 
CLAIM   OF   LIEN.      NATURE,   NECESSITY,   AND   PURPOSE. 

§  361.     Resemblance  between  statutory  provisions  as  to 
claim  of  lien. 

Additional  matter  to  foot-note  I.1 
Additional  matter  to  foot-note  4.2 
Additional  matter  to  foot-note  5.3 

§  362.     Nature  of  claim  of  lien. 

Additional  matter  to  foot-note  7.4 
Additional  matter  to  foot-note  8.5 
Additional  matter  to  foot-note  9.6 

§  363.     Statutory  provision.     California. 
Additional  matter  to  foot-note  10.7 

§  364.    When  claim  of  lien  is  necessary. 
Additional  matter  to  foot-note  24. 8 

1  Kansas.     See   Fossett  v.    Rock   Island   L.    &   Mfg.   Co.    76    Kan.    428, 
92  Pac.  Rep.  833,  835. 

2  California.     See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  509, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

3  Oklahoma.     See   Jones   v.   Balsley    (Okl.),   Ill   Pac.    Rep.   942;   s.    c., 
25   Okl.   344,   106   Pac.  Rep.   830. 

4  California.     Stockton  L.  Co.  v.  Schuler,  155  Cal.   411,   413,   101  Pac. 
Rep.  307. 

Oklahoma.     See  Alberti  v.  Moore,   20  Okl.   78,   93   Pac.   Rep.   543,  547. 

5  Alaska.     Claim  merely  evidence:     Pioneer  M.  Co.  v.  Delamotte   (C. 
C.  A.),  185  Fed.  Rep.  752,  755. 

Idaho.     See  Rathbun  v.  State,  15  Idaho  273,.  97  Pac.  Rep.  335,  337. 
Kansas.     See  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.   428,  92 
Pac.  Rep.   833,   835. 

Nevada.     Porteous  D.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135,  136. 
Oklahoma.     Alberti  v.  Moore,   20  Okl.   78,  93  Pac.  Rep.   543,  547. 

6  California.     Hogan  v.   Bigler,    8   Cal.   App.    71,   73,   96   Pac.   Rep.    97; 
Davis  v.  Treacy,  8  Cal.  App.  395,  97  Pac.  Rep.   78. 

7  California.     §  1187,  Code  Civ.  Proc.,  was  amended  by  act  of  May  1, 
1911,  Stats.  &  Amdts.  1911.  pp.   1313  et  seq.     Among  other  things,  the 
amendment  changes  the  time  of  filing  claim  of  lien  and  also  the  pro- 
visions relative  to  the  contents  of  the  claim  of  lien.     See  subsequent 
sections  for  details  of  changes. 

8  California.     D.    I.   Nofziger   L.   Co.   v.   Waters,    10   Cal.   App.    89,   92, 
101  Pac.  Rep.  38. 


§§  365-368 


MECHANICS'  LIENS—  SUPPLEMENT. 


§  365.     Purpose  of  claim  of  lien. 
Additional  matter  to  foot-note  31.  9 
Additional  matter  to  foot-note  35.10 

£  366.     The  necessity  of  one  or  more  claims  of  lien. 
Additional  matter  to  foot-note  36.  21 

§  367.     Same.    Persons  joining  in  same  claim  of  lien. 
Additional  matter  to  foot-note  37.  12 

§  368.     Same.     Several  objects  and  pieces  of  property. 
Additional  matter  to  foot-note  42.  13 
Additional  matter  to  foot-note  43.  14 


9  Nevada.     Porteous  D.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135. 
Oklahoma.     Vanderberg  v.  P.  T.  Walton  L.  Co.,  19  Okl.  169,  92  Pac. 

Rep.   149,   150.     See  Peaceable  Creek  C.  Co.  v.  Jackson,  26  Okl.   1,  108 
Pac.  Rep.  409,  411.     But  see  Murray  v.  Rlpley,  30  Ark.  568. 

Oregon.     See  Coffey  v.   Smith,    52   Oreg.,   538,   97   Pac.   Rep.    1079. 

10  Oklahoma.     Albertl  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 

11  California.     Claim  under  several  original  contracts:     See  Los  An- 
geles P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  517,  97  Pac.  Rep.  414,  420. 

Oregon.  See  Grants  Pass  B.  &  T.  Co.  v.  Enterprise  M.  Co.  (Oreg.), 
113  Pac.  Rep.  859. 

WaMhlngton.  Statute  to  be  liberally  construed  with  regard  to  the 
number  of  claims  that  may  be  filed:  Lindley  v.  McGlauflin,  58  Wash. 
636,  109  Pac.  Rep.  118;  s.  c.,  57  Wash.  581,  107  Pac.  Rep.  355. 

12  See  notes  to  preceding  section. 

13  Kanaa*.     Smith  v.  Chicago  L.  &  C.  Co.   (Kan.),   114  Pac.  Rep.  372. 

14  Washington.     Gilbert-Hunt   Co.   v.   Parry    (Wash.),   110   Pac.   Rep. 
541,  543. 


137  CONTENTS  OF  CLAIM  OF  LIEN.  8«  370-372 


CHAPTER  XX. 

CLAIM   OF   LIEN    (CONTINUED).      CONTENTS    OF   CLAIM. 

§  370.     General  statement  as  to  contents  of  claim  of  lien. 

Additional  matter  to  foot-note  I.1 
Additional  matter  to  foot-note  2.2 
Additional  matter  to  foot-note  4.3 
Additional  matter  to  foot-note  8.4 

§  371.     Construction  of  claims.     General  principles. 
Additional  matter  to  foot-note  13. 5 
Additional  matter  to  foot-note  14. 6 
Additional  matter  to  foot-note  21. 7 

§  372.     Same.     General  rule  for  determination  of  suffic- 
iency of  claim.8 

1  Montana.     See,    generally,    Mills    v.    Olsen    (Mont.),    115    Pac.    Rep. 
33,  34. 

2  California.     Hogan  v.  Bigler,  8  Cal.  App.  71,  73,  96  Pac.  Rep.  97. 
Kansas.     Omitted  matters  of  substance  can  not  be  imported  into  the 

lien  statement  upon  mere  weighing  of  probabilities:     Chicago  L.  &  C. 
Co.  v.  Washington,  80  Kan.  613,  103  Pac.  Rep.  80,  82. 

3  California.     §  1187,  Code  Civ.  Proc.,  was  amended  in  1911,  Stats.  & 
Amdts.  1911,  pp.  1313  et  seq.,  and  the  provision  as  to  the  "terms,  times 
given  and  conditions"  of  the  contract  was  omitted,  and  another  pro- 
vision inserted  in  lieu  thereof. 

Oregon.     See  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202. 

4  Oregon.     Litherland  v.  S.  Morton  Conn  R.  E.  &  I.  Co.,  54  Oreg.  71, 
100  Pac.  Rep.  1,  102  Pac.  Rep.  303. 

5  California.     Hogan  v.  Bigler,  8  Cal.  App.  71,  73. 

But  no  strained  construction  on  behalf  of  subclaimants:  Hogan  v. 
Bigler,  supra. 

Kansas.  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac. 
Rep.  80,  82. 

Montana.     Neuman  v.  Grant,  36  Mont.  77,  92  Pac.  Rep.  43. 

Nevada.     Porteous  D.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135. 

6  Kansas.     Chicago  L.  &  C.  Co.  v.  Washington,  80  'Kan.  613,  103  Pac. 
Rep.  80,  82. 

Oklahoma.     Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  546. 

7  Kansas.     See  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.   613,   103 
Pac.  Rep.   80,   81. 

Oklahoma.  But  see  contra  as  to  subclaimants,  not  in  privity  with 
owner:  Peaceable  Creek  C.  Co.  v.  Jackson,  26  Okl.  1,  108  Pac.  Rep.  411. 

8  California.     See    §  1187,   Code   Civ.    Proc.,   as   amended   May    1,    1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 


§§  373-375  MECHANICS.LIENS  —  SUPPLEMENT. 

§  373.     Same.    What  generally  required. 
Additional  matter  to  foot-note  25.9 

§  374.  Same.  Unnecessary  statements. 
Additional  matter  to  foot-note  29.  10 
Additional  matter  to  foot-note  30.  n 
Additional  matter  to  foot-note  32.  12 
Additional  matter  to  foot-note  33.13 
Additional  matter  to  foot-note  34.  14 
Additional  matter  to  foot-note  37.  15 
Additional  matter  to  foot-note  42.16 


§  375.  Statement  of  demand,  after  deducting  credits  and 
offsets.  There  is  no  material  difference  between  a  statement 
of  the  amount  due,  without  setting  out  the  credits,  and  a 
statement  of  the  whole  amount  of  the  debit  side  of  the  ac- 
count and  also  of  the  credits.17 

Additional  matter  to  foot-note  49.  18 


o  Montana.  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac. 
Rep.  353,  356. 

loKanaan.  See  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613, 
103  Pac.  Rep.  80,  81. 

11  Oregon.     Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.  71, 
100  Pac.  Rep.  1.  102  Pac.  Rep.  303. 

12  Oregon.     Claim    need    not    nliovr    that    work    was    done    on    fixture 
to  mine:     Washburn  v.   Intermountain  M.  Co.    (Oreg.),    109   Pac.   Rep. 
382,  385. 

See  Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.,  71,  100  Pac. 
Rep.  1,  102  Pac.  Rep.  303. 

13  Oregon.     Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.  71, 
100  Pac.  Rep.  1,  102  Pac.  Rep.  303. 

14  Oregon.     Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.  71, 

100  Pac.   Rep.   1,   102  Pac.   Rep.  303. 

is  Oregon.  But  see  Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106 
Pac.  Rep.  447,  451. 

16  Montana.  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac. 
Rep.  353,  356. 

Oregon.  See  Durkheimer  v.  Copperopolis  C.  Co.  (Oreg.),  104  Pac. 
Rep.  895,  897. 

IT  California.     Lucas  v.  Rea,  10  Cal.  App.  641,  646,  102  Pac.  Rep.  822, 

101  Pac.  Rep.  537. 

is  New  Mexleo.  "In  some  jurisdictions,  as  for  instance,  Washington, 
this  provision  ('  Statement  of  his  demands,'  §  2221,  Comp.  Laws  N.  M.) 
has  been  quite  strictly  construed,  and  it  is  there  held  that  it  must  ap- 
pear what  the  labor  or  materials  were  for  which  the  claim  is  asserted 
(See  Warren  v.  Quade,  3  Wash.  St.  750,  29  Pac.  Rep.  827).  In  other 
jurisdictions  it  is  held,  more  properly,  as  we  believe,  that  a  statement 


139  CONTENTS  OF  CLAIM  OF  LIEN.  §§  375-379 

Additional  matter  to  foot-note  55. 19 

§376.     Same.    Object  vof  provision  as  to  demand. 

§  377.     Same.    Commingling    lienable    and    non-lienable 
items. 

Additional  matter  to  foot-note  60.20 
Additional  matter  to  foot-note  61. 21 

§  378.     Same.     Demands  against  two  or  more  buildings. 

Additional  matter  to  foot-note  63. 22 

§  379.    Names  required  to  be  stated  in  claim.    In  general. 

Additional  matter  to  foot-note  66. 23 


of  the  general  nature  of  the  materials  furnished,  or  labor  performed, 
together  with  the  amount  claimed  to  be  due  therefor,  after  deducting 
all  just  credits  and  offsets,  is  all  that  is  required":  Gray  v.  New 
Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep.  603,  604. 

19  California.      Mistake   in   demand:      Stockton   L.   Co.   v.   Schuler,    155 
Cal.  411,  414,  101  Pac.  Rep.  307. 

Montana.     Neuman  v.  Grant  (Mont.),  36  Mont.  77,  92  Pac.  Rep.  43. 

Oregon.     Eugene  P.  M.  Co.  v.  Snell  (Oreg.),  106  Pac.  Rep.  21. 

Claim  statement,  known  to  be  untrue,  or  by  the  exercise  of  reason- 
able diligence  could  have  been  found  to  be  false,  invalid:  Equitable 
S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac.  Rep.  447,  451  (under  B.  &  C. 
Comp.,  §  5683). 

The  receipt  of  payment  is  a  fact  particularly  within  the  knowledge 
of  the  claimant,  and  he  is  bound  to  state  it  truly  in  his  claim  of  lien: 
Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac.  Rep.  447,  451. 

20  Alaska.     Pioneer   M.    Co.   v.    Delamotte    (C.    C.    A.),    185    Fed.    Rep. 
752,   755. 

Washington.  Little  Bros.  Mill  Co.  v.  Baker,  57  Wash.  311,  106  Pac. 
Rep.  910;  Gilbert-Hunt  Co.  v.  Parry  (Wash.),  110  Pac.  Rep.  541,  543 
(quoting  text  of  Treatise). 

21  Colorado.     Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo. 
461,  94  Pac.  Rep.  570,  573;  Rice  v.  Rhone   (Colo.),  Ill  Pac.  Rep.   585. 

Kansas.     Home  L.  &  S.  Co.  v.  School  Dist.   (Kan.),  115  Pac.  Rep.  590. 

New  Mexico.  See  Stearns-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co., 
14  N.  M.  300,  93  Pac.  Rep.  706,  710;  Gray  v.  New  Mexico  P.  S.  Co. 
(N.  M.),  110  Pac.  Rep.  603,  604. 

Oregon.  'See  Rowen  v.  Alladio,  51  Oreg.  121,  93  Pac.  Rep.  929;  Alder- 
son  v.  Lee,  52  Oreg.  92,  96  Pac.  Rep.  234,  236. 

Washington.  Strandell  v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106. 
See  Bellingham  v.  Linck,  53  Wash.  208,  101  Pac.  Rep.  843;  Gilbert-Hunt 
Co.  v.  Parry  (Wash.),  110  Pac.  Rep.  541,  543. 

22  Oregon.     See  contra:     Crane  Co.  v.   Erie  H.  Co.    (Oreg.),   112   Pac. 
Rep.   430. 

23  Washington.     Compare   Carney  v.   Bigham,   51   Wash.   452,   99   Pac. 
Rep.  21,  22. 


5  379-382       MECHANICS-  LIENS— SUPPLEMENT.  140 

Additional  matter  to  foot-note  69.24 

§  380.  Same.  Name  of  owner  or  reputed  owner. 
Additional  matter  to  foot-note  71.25 
Additional  matter  to  foot-note  72.26 
Additional  matter  to  foot-note  73.27 
Additional  matter  to  foot-note  74.28 
Additional  matter  to  foot-note  75.29 
Additional  matter  to  foot-note  79.30 

£  381.     Same.    Employer.    Purchaser. 
Additional  matter  to  foot-note  92. 31 
Additional  matter  to  foot-note  93.32 

>;  382.     Same.     Under  void  statutory  original  contract.33 
Additional  matter  to  foot-note  97. :u 


24  California.     Hogan  v.  Bigler,  8  Cal.  App.  71,  96  Pac.  Rep.  97. 
California.     Common  law  right  to  change  name:     See  Emery  v.  Klpp. 

154  Cal.  83,  97  Pac.  Rep.  17,  19. 

Idem  sonans:  "Tasso"  and  "Dasso,"  see  Napa  State  Hospital  v. 
Dasso,  153  Cal.  98,  96  Pac.  Rep.  355. 

Washington.  Doctrine  of  Idem  Monann  an  to  names:  Kelly  v.  Kuhn- 
hausen,  51  Wash.  193,  98  Pac.  Rep.  603. 

25  California.     Hogan  v.  Bigler,  8  Cal.  App.  71,  73,  96  Pac.  Rep.  97. 

26  California.     Hogan  v.  Bigler.  8  Cal.  App.  71,  96  Pac.  Rep.  97. 

27  California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  650,  103  Pac.  Rep.  157. 

28  California.     See   Lucas   v.   Gobbi,   10  Cal.   App.   648,    650,    103   Pac. 
Rep.  157. 

2»  California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  651,  103  Pac.  Rep.  157. 

so  California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  651,  103  Pac.  Rep.  157. 

si  California.     Hogan  v.  Bigler,  8  Cal.  App.  71,  96  Pac.  Rep.  97. 

"Party  to  be  charged":  Compare  Harper  v.  Goldschmidt,  156  Cal. 
245,  104  Pac.  Rep.  451. 

Kansas.  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac. 
Rep.  80,  81. 

32  Kansas.     See   Chicago   L.   &   C.   Co.   v.   Washington,   80   Kan.    613, 
103  Pac.  Rep.  80,  81. 

Oregon.     See  Bonn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202,  204. 

33  California.     The    statutory    original    contract    was    abolished    by 
amendment  of  May  1,  1911,  to  {  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

See  $|  258,  268,  274,  281,  288  and  328,  this  Supplement,  ante. 

34  California.     Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  495,  99  Pac. 
Rep.   856,  111   Pac.   Rep.   760;   s.  c.,  sub  nom.   Burnett  v.  Glas,    154   Cal. 
249.  97  Pac.  Rep.  423;  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  687. 


141  CONTENTS  OF  CLAIM  OF  LIEN.  §§  382-388 

Additional  matter  to  foot-note  98. 35 

§  383.     Same.    Inferential  statements. 
Additional  matter  to  foot-note  99. 36 

§384.     Same.     "Causing"  improvement. 

§  385.     Same.    Name  of  agent. 
Additional,  matter  to  foot-note  104.37 

§  386.     Same.    Two  or  more  employers  or  purchasers. 

§  387.  Terms,  time  given,  and  conditions  of  contract.  In 
general. 

Additional  matter  to  foot-note  109. 38 

§  388.     Same.     Object    and    construction    of    provision. 

Another  object  of  the  provision  is  to  inform  the  owner  as 
to  the  extent  and  nature  of  the  lienor's  claim,  to  facilitate 
an  investigation  as  to  its  merits.39 

The  test  of  the  sufficiency  of  the  claim  of  lien  with  respect 
to  this  provision  is  whether  it  departs  so  far  from  the  terms 
and  conditions  of  the  contract  as  to  mislead,  to  the  injury 
of  the  owner;  if  there  is  a  substantial  agreement  between 
the  contract  and  the  claim  of  lien,  so  that  there  could  not 
arise  in  the  mind  of  the  owner  any  misapprehension  as  to 


35  California.     Lucas    v.    Rea,    10    Cal.    App.    641,    102    Pac.    Rep.    822, 
101  Pac.  Rep.  537. 

36  Kansas.     See   Chicago   L.    &   C.    Co.    v.    Washington,   80   Kan.,    613, 
103  Pac.  Rep.  80,  81. 

37  Oregon.     Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.  71, 
100  Pac.   Rep.   1,   102  Pac.  Rep.   303.     See  Equitable  S.   &  L..  Assoc.  v. 
Hewitt   (Oreg.),  106  Pac.  Rep.  447,  451. 

38  California.     See    Barrett-Hicks   Co.    v.    Glas    (Cal.    App.),    Ill    Pac. 
Rep.    760,  764,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub    nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423.     See  Otis  E.  Co.  v.  Brainerd,  10 
Cal.  App.  229,  232,  101  Pac.  Rep.  691. 

See  §  1187,  Code  Civ.  Proc.,  as  amended  May  1,  1911   (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

39  California.     Barrett-Hicks  Co.   v.   Glas    (Cal.  App.),    Ill   Pac.   Rep. 
760,  764;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.  sub    nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 


§§  388-392 


MECHANICS'    LIENS  —  SUPPLEMENT- 


the  extent  and  nature  of  the  lienor's  claim,  ,  it  is  sufficient; 
otherwise,  not.40 

Additional  matter  to  foot-note  111.41 

Additional  matter  to  foot-note  112.42 

Additional  matter  to  foot-note  114.43 

§  389.     Same.    General  rules. 
Additional  matter  to  foot-note  116.44 
Additional  matter  to  foot-note  118.45 
Additional  matter  to  foot-note  119.46 

§  390.     Same.    Showing  contractual  indebtedness. 
Additional  matter  to  foot-note  122.47 
Additional  matter  to  foot-note  123.48 

§  391.     Same.    Setting  out  terms  of  original  contract. 
Additional  matter  to  foot-note  125.49 

§  392.     Same.    Reference  to  other  papers. 


40  California.     Barrett-Hicks  Co.   v.  Glas    (Cal.   App.),   Ill    Pac.   Rep. 
760,  764,  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.  sub    nom.  Burnett 
v.  Glas.  154  Cal.  249.  97  Pac.  Rep.  423. 

41  California.     Barrett-Hicks  Co.  v.  Glas    (Cal.  App.),   Ill  Pac.   Rep. 
760.  764;  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub    nom.  Burnett  v. 
Glas,  154  Cal.  249.  97  Pac.  Rep.  423. 

42  Nevada.     Porteous  D.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135. 

43  California.      Lucas    v.    Rea,    10    Cal.    App.    641,    645,    102    Pac.    Rep. 
822,  101  Pac.  Rep.  537. 

Nevada.     Porteous  D.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep.  135. 

44  California.     Barrett-Hicks  Co.  v.   Glas    (Cal.   App.),   Ill   Pac.   Rep. 
760,  764;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.  sub    nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

45  New  Mexico.     Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep. 
603,  604. 

46  New  Mexico.     Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep. 
603,  604. 

47  Nevada.     But  see  Porteous  D.  Co.  v.  Fee,  29  Nev.  375,  91  Pac.  Rep. 
135. 

48  Oregon.     Lltherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.  71, 

100  Pac.  Rep.  1,  102  Pac.  Rep.  303. 

49  California.     See   Otis    E.   Co.    v.    Brainerd,    10   Cal.    App.    229,    232, 

101  Pac.  Rep.  691. 


3  CONTENTS    OF    CLAIM    OF    LIEN.  S  393 

§  393.     Same.    Express  and  implied  agreement  as  to  price. 
Additional  matter  to  foot-note  128. 50 
Additional  matter  to  foot-note  129. 51 
Additional  matter  to  foot-note  ISO.52 


no  California.  See  Coghlan  v.  Quartararo  (Cal.  App.),  115  Pac.  Rep. 
664,  666. 

si  California.  But  the  rule  of  the  text  seems  to  have  been  changed 
in  the  later  cases:  Lucas  v.  Gobbi,  10  Cal.  App.  648,  652,  103  Pac.  Rep. 
157  (hearing  in  Supreme  Court  denied);  Lucas  v.  Rea,  10  Cal.  App.  641, 
102  Pac.  Rep.  822.  See,  also,  Star  M.  &  L.  Co.  v.  Porter,  4  Cal.  App.  470, 
88  Pac.  Rep.  497. 

52  California.  "In  Star  M.  &  L.  Co.  v.  Porter,  4  Cal.  App.  470,  88  Pac. 
Rep.  497,  it  was  said:  'The  notice  is,  indeed,  incorrect  in  stating  as 
one  of  the  terms  of  the  contract  that  the  claim  was  based  on  a 
quantum  meruit,  instead  of  upon  a  special  promise  to  pay  a  fixed 
amount;  and  this  doubtless  as  a  matter  of  pleading  would  constitute 
at  common  law  a  material  variance,  though  hardly  under  existing 
practice.  (Code  of  Civ.  Proc.,  §  469.)  But,  as  we  have  already  said, 
the  technical  doctrine  of  variance  has  no  application  to  a  notice  of 
lien,  when  all  that  is  required  is  that  the  statement  of  the  terms  of 
the  contract  shall  be  substantially  true.  There  are,  indeed,  many 
cases  cited  by  the  appellant,  and  other  cases,  which  might  be  con- 
ceived to  hold  the  contrary  doctrine.  (Reed  v.  Norton,  99  Cal.  619, 
34  Pac.  Rep.  333;  Palmer  v.  Lavigne,  104  Cal.  34,  37  Pac.  Rep.  775; 
Santa  Monica  L.  &  M.  Co.  v.  Hege,  119  Cal.  380,  10  Cal.  App.  640,  646, 
51  Pac.  Rep.  555;  Wilson  v.  Nugent,  125  Cal.  283,  57  Pac.  Rep.  1008).  But 
these,  or  most  of  them,  are  distinguished  from  the  present  case  in 
that  it  did  not  appear  that  the  fixed  price  stated  was  the  market  price. 
In  the  absence  of  this  fact,  the  statement  would  be  substantially  false 
and  might  mislead  the  owner  to  his  prejudice.  But  where  the  fact 
appears,  no  injury  can  result  to  the  owner;  nor  can  the  misstatement 
be  regarded  as  material.'  " 

And  it  was  held  that,  conceding  that  the  statement  in  the  claim 
"and  the  said  A.  S.  Howell  agreed  to  pay  said  sum  of  $799.99  so  due 
upon  the  completion  of  the  work"  sets  forth  an  express  agreement  at 
the  time  the  material  was  ordered,  it  is  difficult  to  see  how  the  appel- 
lants (owners)  were  injured,  where  the  evidence  showed  that  this 
was  actually  the  market  value,  barring  a  slight  variance  on  account 
of  an  error  committed  in  the  account  by  Mr.  Lucas  (the  claimant) ; 
the  court  saying:  "But,  again,  the  said  notice  is  at  most  uncertain 
•as  to  whether  claimants  relied  upon  an  express  or  an  implied  contract. 
In  the  endeavor  to  comply  with  the  requirement  of  the  statute  to  set 
out  the  'terms,  time  given,  and  conditions  of  his  contract,'  this  state- 
ment was  made  in  said  notice:  'That  the  terms,  time  given  and  con- 
dition of  the  contract  between  claimants  and  said  A.  S.  Howell 
are  as  follows:  The  claimants  were  employed  on  or  about  the  6th  day 
of  July,  1906,  by  said  A.  S.  Howell,  the  original  contractor  for  said 
building,  to  furnish  lumber  and  building  material  to  be  used  in  the 
construction  and  erection  of  said  building  and  its  additions.  That 
there  was  no  condition  attached  to  said  contract,  between  these  claim- 
ants and  said  A.  S.  Howell  and  no  time  was  set  for  the  payment 
thereof  except  that  the  amount  due  claimants  was  to  be  paid  as  soon 
as  the  work  was  completed  and  finished  by  them.'  The  foregoing 
purports  to  contain  all  the  terms  of  the  contract,  and,  therefore  there 


§§394,395         MECHANICS'    LIENS — SUPPLEMENT. 

§  394.    Same.    Items  of  account. 
Additional  matter  to  foot-note  133.53 
Additional  matter  to  foot-note  135.54 

i  395.     Same.    Nature  of  labor. 
Additional  matter  to  foot-note  138.55 


is  ground  for  the  contention  that  the  declaration  In  the  previous 
portion  of  the  notice  as  to  the  promise  to  pay  was  intended  to  affirm 
an  express  agreement  to  have  been  made,  to  wit,  'upon  completion  of 
the  work.'  There  is,  indeed,  evidence  of  an  account  stated,  although 
the  agreement  was  reached  after  the  completion  of  the  work.  The 
exact  time,  however,  is  manifestly  immaterial  if,  as  it  seems  quite 
probable,  this  was  the  promise  to  which  claimants  referred  in  their 
said  notice.  By  construing  the  phrase  "upon  completion  of  the  work' 
as  fixing  the  time  when  the  promise  was  made  the  said  notice  was 
rendered  harmonious  and  consistent.  At  any  rate,  if  there  be  such 
an  uncertainty  in  this  particular  as  to  render  the  notice,  if  it  were 
a  complaint,  subject  to  a  special  demurrer,  In  view  of  the  circum- 
stances already  detailed,  It  would  be  technical  in  the.  extreme  to  hold 
the  defect  fatal  to  the  lien.  We  have  thus  been  led  to  follow  what 
we  conceive  to  be  the  just  and  reasonable  rule  laid  down  in  the 
Porter  case,  supra,  which  upon  examination  will  be  found  substan- 
tially in  harmony  with  the  supreme  court  decisions":  Lucas  v.  Rea,  10 
Cal.  App.  641,  646.  647,  102  Pac.  Rep.  822,  101  Pac.  Rep.  537.  See 
Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep.  760,  764;  s.  c., 
9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett  v.  Glas,  154 
Cal.  249,  97  Pac.  Rep.  423. 

&3  California.     See    Otis   E.    Co.   v.    Brainerd,    10    Cal.    App.    229,    232, 
101   Pac.  Rep.  691. 

Colorado.     Definition  of  account t     See  Donley  v.  Bailey   (Colo.),   110 
Pac.   Rep.  65,   68. 

Idaho.     See  Naylor  v.   Lewiston   &  S.   E.   E.   Ry.  Co.,    14   Idaho    789, 
96  Pac.  Rep.  573,  578;  s.  c.,  95  Pac.  Rep.  827. 
Account  stated > 

California.     See  Stimson   M.  Co.  v.  Hughes,   5  Cal.  App.   559. 
Montana.     Rules    concerning:  .  Johnson    v.    Gallatin    Valley    M.    Co., 
33  Mont.  83,  98  Pac.  Rep.  883. 

Copy  of  account   not  meaning  Items  of  account,  compare  Moran  v. 
Ebey,  39  Mont.  517,  104  Pac.  Rep.  522. 

- 1  Kan.Him.     Home  L.  &  S.  Co.  v.  School  Dist.   (Kan.),  115  Pac.  Rep. 
590. 

Montana.     Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac. 
Rep.   353,   356. 

55  Montana.     Contra:     Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87, 
108  Pac.  Rep.  353,  356.. 

New   Mexico.     But   see  Gray  v.  New  Mexico  P.   S.  Co.    (N.  M.),   110 
Pac.  Rep.  603.  604. 

Oregon.     Washburn  v.  Intermountain  M.  Co.   (Oreg.),  109  Pac.  Rep. 
382,  385. 

But  see   Durkhelmer  v.  Copperopolis  C.  Co.    (Oreg.),  104   Pac.   Rep. 
895.  897. 

Oregon.     See  as  to  work  on  fixtures:     Rowen  v.  Alladio,  51  Oreg.  121, 
93  Pac.  Rep.  929. 


145  CONTENTS    OF   CLAIM   OF   LIEN.  S  8  395-402 

Additional  matter  to  foot-note  139. 56 
§  396.     Same.    Dates.57 
§397.     Same.  "Time  given."57 
§398.    Same.    "Cash."57 

§  399.  Description  of  property.  In  general.  If  there 
appear  enough  in  the  description  to  enable  a  party  familiar 
with  the  locality  to  identify  the  premises  intended  to  be 
described  with  reasonable  certainty,  to  the  exclusion  of 
others,  it  will  be  sufficient.58 

Additional  matter  to  foot-note  154.59 

Additional  matter  to  foot-note  155. 60 

Additional  matter  to  foot-note  156. 61 

§  400.     Same.    Bona  fide  purchasers. 
§  401.     Same.    Object  of  provision. 

§  402.  Same.  General  rule.  Among  the  identifying 
facts  which  are  held  competent  to  be  considered  for  deter- 
mining the  sufficiency  of  the  claim  of  lien  are  references  to 
adjoining  properties,  a  description  of  the  building  which  has 
been  constructed,  or  the  fact  that  the  land  upon  which  it  is 
erected  is  the  only  property  of  the  owner  in  that  locality.62 

Washington.  But  see,  contra:  Mclntyre  v.  Montana  G.  M.  M.  Co., 
41  Mont.  87,  108  Pac.  Rep.  535,  537. 

56  Montana.    'Contra:     Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87, 
108  Pac.  Rep.  353,  356. 

57  California.     See   §  1187,   Code   Civ.   Proc.,   as   amended  May   1,   1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

58  California.     Patten  &  Davies  L.  Co.  v.  Gibson,  9  Cal.  App.   23,   25, 
98  Pac.  Rep.  37,   38;  Union  L.  Co.  v.  Simon,  150  Cal.   758,  89   Pac.  Rep. 
1077,   1081. 

so  Oregon.  Description  of  logs:  See  Alderson  v.  Lee,  52  Oreg.  92, 
96  Pac.  Rep.  234,  236. 

eo  California.  D.  I.  Nofziger  L.  Co.  v.  Waters,  10  Cal.  App.  89,  92, 
101  Pac.  Rep.  38. 

61  Utah.     See   Park   City   M.   Co.   v.   Comstock   S.   M.    Co.    (Utah),   103 
Pac.  Rep.  254,  258. 

62  California.     Patten  &  Davies  L.  Co.  v.  Gibson,   9  Cal.  App.   23,   25. 
98  Pac.  Rep.   37,  38;  Union  L.  Co.  v.  Simon,  150  Cal.   758,  89   Pac.  Rep. 
1077,  1081. 

Bloom's  Sup. — 10 


§§  402-405 


MECHANICS'    LIENS  —  SUPPLEMENT. 


If  the  description  in  the  claim  of  lien  identifies  the  prop- 
erty by  reference  to  the  facts,  that  is,  if  it  points  clearly  to 
a  piece  of  property  and  there  is  no  other  one  that  will 
answer  the  description,  it  is  sufficient.03 

Additional  matter  to  foot-note  164.  °4 

Additional  matter  to  foot-note  167.  65 

§  403.  Same.  Special  applications.  False  calls.  A  de- 
scription by  the  proper  number  of  lot  but  in  another  block 
of  the  same  tract  was  held  insufficient,  notwithstanding  that 
the  owner's  contract  thus  incorrectly  described  it,  and  the 
owner  informed  the  claimant,  upon  inquiry,  that  the  de- 
scription in  the  contract  was  correct;  and  the  owner  was 
held  not  estopped.66 

Additional  matter  to  foot-note  168.67 

§  404.  Same.  Property  identified  by  name  or  exclusive 
character. 

Additional  matter  to  foot-note  171.  68 

j  405.  Same.  Description  as  including  too  much  or  too 
little. 

Additional  matter  to  foot-  note  173.  69 

03  California.  Patten  &  Davies  L.  Co.  v.  Gibson,  9  Cal.  App.  23,  25, 
98  Pac.  Rep.  37,  38;  Union  L.  Co.  v.  Simon,  150  Cal.  758,  89  Pac.  Rep. 
1077,  1081. 

64  California.     See    Patten    &    Davies   L.    Co.    v.    Gibson,    9    Cal.    App. 
23,  98  Pac.  Rep.  37,  38. 

65  California.     Patten    &    Davies    L.    Co.    v.    Gibson,    9   Cal.    App.    23, 
98   Pac.   Rep.   37,  38. 

66  California.     D.   I.   Nofziger  L.   Co.   v.   Waters,   10   Cal.   App.   89,   92, 
101  Pac.  Rep.  38. 

67  California.     An  to  mistake  In  block  number,  under  pleadings:     See 
Patten    &    Davies   L.    Co.   v.    Gibson,    9   Cal.    App.    23,    98    Pac.    Rep.    37. 
See  following1  note. 

68  California.     Am  to  mistake  in   block   number,  lot   described   being 
owned  by  third  person,  and  no  Identifying  feature,  insufficient:     D.  I. 
NofzigeT  L.  Co.  v.  Waters,  10  Cal.  App.  89,  91,  101  Pac.  Rep.  38  (8  1203a, 
Code  Civ.  Proc.,  subsequently  passed).     See  preceding  note. 

69  Utah.     See  Park   City  M.   Co.  v.  Comstock  S.  M.  Co.    (Utah),    103 
Pac.  Rep.  254,  260. 

Washington.  Description  of  Island,  containing  acreage  owned  by 
third  person,  insufficient:  Brown  v.  Trimble,  48  Wash.  270,  93  Pac. 
Rep.  317. 


CONTENTS    OF    CLAIM    OF    LIEN.  KS  405-410 

Additional  matter  to  foot-note  174.70 
Additional  matter  to  foot-note  ISO.71 
Additional  matter  to  foot-note  181. 72 

§  406.  Same.  Two  or  more  descriptions.  Statutory  pro- 
vision.73 

§  407.  Same.  Application  of  provision  as  to  demands 
against  separate  buildings. 

Additional  matter  to  foot-note  187. 74 

§  408.     Claim  of  charge. 

§  409.  Signature.  A  claim  of  lien  of  a  corporation  may 
be  signed  in  the  name  of  the  corporation,  "by"  a  certain 
person,  who  is  general  manager  of  the  company,  and  such 
person  may  verify  it  on,  behalf  of  the  corporation.75 

§  410.  Verification.  The  purpose  of  the  verification  of 
the  claim  of  lien  is  not  to  prove  the  lien  when  it  is  sought 
to  enforce  it  in  a  court.  It  is  required  as  an  evidence  of 
good  faith  and  the  prima  facie  support  of  his  claim  for  the 

TO  Utah.  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah),  103  Pac. 
Rep.  254,  259. 

71  Montana.     Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac. 
Rep.  353,  356. 

I  i ah.  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah),  103  Pac.  Rep. 
254,  261. 

72  Montana.     Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac. 
Rep.  353,  356. 

Utah.  See  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah),  103  Pac. 
Rep.  254,  258. 

73  California.     §  1188,  Code  Civ.  Proc.,  was  not  amended  by  act  May 
1,  1911  (Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

74  Montana.     See   Mclntyre    v.    Montana    G.    M.    M.    Co.,    41    Mont.    87, 
108  Pac.  Rep.  353,  357. 

Claim  on  one  of  group  of  mines:  Mclntyre  v.  Montana  G.  M.  M.  Co., 
41  Mont.  87,  108  Pac.  Rep.  353,  357. 

Oklahoma.  But  see  Peaceable  Creek  C.  Co.  v.  Jackson,  26  Okl.  1, 
108  Pac.  Rep.  409,  412. 

75  California.     Coghlan  v.  Quartararo   (Cal.  App.),   115  Pac.  Rep.  664, 
667. 


§§410-412          MECHANICS'    LIENS — SUPPLEMENT.  J4g 

purpose  of  giving  notice  that  the  claimant  intends  to  avail 
himself  of  his  right  to  a  lien,  in  the  particular  case.76 

Additional  matter  to  foot-note  201. 77 

Additional  matter' to  foot-note  203. 78 

Additional  matter  to  foot-note  208. 79 

Additional  matter  to  foot-note  210.80 

Additional  matter  to  foot-note  211. 81 

Additional  matter  to  foot-note  213.82 

§  411.     Uncertainty  in  claim.83 

§  412.  Mistake  and  error  in  claim.84 
Additional  matter  to  foot-note  217. 85 
Additional  matter  to  foot-note  218.86 


76  California.     D.    I.    Nofziger   L.    Co.    v.    Solomon,    13    Cal.    App.    621, 
110  Pac.  Rep.  474,  476. 

77  Oath  taken  over  telephone  void:     See  Fairbanks,  Morse   &  Co.  V. 
Getchell    (Cal.   App.),   110   Pac.   Rep.   331,   332;   Sullivan  v.   First  Natl. 
Bank,  37  Tex.  Civ.  App.  228,  83  S.  W.  Rep.  421. 

A«  to  nlKnln(c  affidavit:  See  Fairbanks,  Morse  &  Co.  v.  Getchell 
(Cal.  App.),  110  Pac.  Rep.  331,  332  (attachment);  Ede  v.  Johnson,  15 
Cal.  53;  Pope  v.  Kirschner,  77  Cal.  152,  19  Pac.  Rep.  264. 

Federal.  See  Tygart  Valley  B.  Co.  v.  Vilter  Mfg.  Co.  (C.  C.  A.), 
184  Fed.  Rep.  845. 

78  Oregon.     Compare  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202. 
Notary  public  can  not  act  outnlde  of  county,  in  absence  of  statutory 

permission:  Fairbanks,  Morse  &  Co.  v.  Getchell  (Cal.  App.),  110  Pac. 
Rep.  331',  332;  In  re  House  Bill  No.  166,  9  Colo.  628,  21  Pac.  Rep.  473; 
Byrd  v.  Cochran,  39  Neb.  109,  58  N.  W.  Rep.  127. 

79  Wanhlngton.     Cornelius    v.    Washington    S.    L.,    52   Wash.    272,    100 
Pac.  Rep.  727,  729. 

so  California.  Compare  Richards  v.  Blaisdell,  12  Cal.  App.  101,  106 
Pac.  Rep.  732. 

si  Jurat  nitanlng;  evidence  allundet  See  James  v.  Logan,  82  Kan. 
285,  108  Pac.  Rep.  81  (attachment). 

Jurat  held  Nufnclenti  See  Cunningham  v.  Barr,  45  Kan.  158,  25  Pac. 
Rep.  583. 

82  California.     See  Coghlan  v.  Quartararo   (Cal.  App.),   115  Pac.  Rep. 
664,  667;  A.  P.  Hotallng  &  Co.  v.  Brogan,  12  Cal.  App.  500,  107  Pac. 
Rep.  711. 

83  See  {  412,  post. 

84  California.     See   §1203,  Code  Civ.  Proc.,  as  amended  May  1,   1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

85  Oregon.     See  Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac. 
Rep.  447,  451. 

se  California.  See  D.  I.  Nofziger  L.  Co.  v.  Waters,  10  Cal.  App.  89,  91, 
101  Pac.  Rep.  38. 


CONTENTS    OF    CLAIM   OF   LIEN.  §§413-415 

§  413.    Unnecessary  statements.87 

§  414.     Same.     Other  illustrations. 
Additional  matter  to  foot-note  226. 88 
Additional  matter  to  foot-note  227. 89 
Additional  matter  to  foot-note  229. 90 
Additional  matter  to  foot-note  231. 91 

§  415.     Amendment  of  claim. 
Additional  matter  to  foot-note  233. 92 


87  California.     See   §  1187,   Code  Civ.   Proc.,   as  amended  May   1,    1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

88  Kansas.     Fossett   v.    Rock    Island   Mfg.    Co.,    76  'Kan.    428,   92    Pac. 
Rep.  833,  835. 

89  California.     Lucas  v.  Rea,  10  Cal.  App.  641,  645,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  537;  Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  414,  101  Pac. 
Rep.  307. 

California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  651,  103  Pac.  Rep.  157. 

»o  Oregon.  See  Equitable  S.  &  L.  Assoc.  (Oreg.),  106  Pac.  Rep.  447, 
451. 

»i  Alaska.  Alaska  P.  M.  Co.  v.  Delamotte  (C.  C.  A.),  185  Fed.  Rep. 
752,  755. 

Colorado.  Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo. 
461,  94  Pac.  Rep.  570,  573. 

Kansas.     Home  L.  &  S.  Co.  v.  School  Dist.   (Kan.),  115  Pac.  Rep.  590. 

Oregon.     See  Alderson  v.  Lee,  52  Oreg.  92,  96  Pac.  Rep.  234,  236. 

Washington.  Strandell  v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106; 
Bellingham  v.  Linck,  53  Wash.  208,  101  Pac.  Rep.  843,  844. 

92  Washington.  Nnmfoer  of  claims  may  be  filed:  Lindley  v.  Mc- 
Glauflin,  58  Wash.  636,  109  Pac.  Rep.  118;  s.  c.,  57  Wash.  581,  107  Pac. 
Rep.  355. 

Washington.  Claim  can  not  be  amended  without  order  of  court, 
under  statute;  permission  to  amend  complaint  is  not  permission  to 
amend  claim  of  lien:  Brown  v.  Trimble,  48  Wash.  270,  93  Pac.  Rep.  317. 

Amendment  allowed  under  statute  expressly  authorizing;  same,  no 
person  being  injured: 

Oklahoma.     Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  546. 

Washington.  Stetson  &  Post  L.  Co.  v.  W.  &  J.  Sloane  Co.  (Wash.), 
112  Pac.  Rep.  248;  Cornelius  v.  Washington  S.  L.,  52  Wash.,  272, 
100  Pac.  Rep.  727,  729;  Malfa  v.  Crisp,  52  Wash.  509,  100  Pac.  Rep. 
1012  (number  of  lot  in  a  certain  block  allowed  to  be  changed);  Lind- 
ley v.  McGlauflin,  58  Wash.  636,  109  Pac.  Rep.  118;  s.  c.,  57  Wash.  581, 
107  Pac.  Rep.  355. 

Such  amendment  may  be  allowed  after  the  legal  time  for  filing 
claim  of  lien:  Stetson  &  Post  L.  Co.  v.  W.  &  J.  Sloane  Co.,  supra. 

Claim  may  be  amended  as  pleadings  are:      Malfa  v.  Crisp,  supra. 

Appellate  court  will  treat  defective  claim  as  a  defective  pleading: 
Cornelius  v.  Washington  S.  L.,  52  Wash.  272,  100  Pac.  Rep.  727,  729. 


§§416-421  MECHANICS'    LIENS — SUPPLEMENT. 


'-CHAPTER  XXI. 
CLAIM  OF  LIEN   (CONTINUED).     FILING  CLAIM. 

§  416.     Filing  claim.    In  general. 
Additional  matter  to  foot-note  I.1 
Additional  matter  to  foot-note  4.2 

§  417.     Statutory  provisions. 
Additional  matter  to  foot-note  7.3 

§  418.     Purpose  of  provision  requiring  claims  to  be  filed 
within  a  certain  time. 

Additional  matter  to  foot-note  12.4 

§  419.     Same.    In  case  of  void  contract.-"' 
§  420.     Place  of  filing  claim  for  record.'5 

$  421.     Original  contract  void.    Necessity  of  filing  claim. 
Additional  matter  to  foot-note  19.7 


1  Oklahoma.      Where  the  property   i-   In  the  hand*  of  a  reeelver  and 

claims  were  presented  to  the  court  and  heard  by  a  referee  and  on  an 
agreed  statement  of  facts  judgment  was  rendered,  filing  of  formal 
claim  unnecessary,  where  under  the  statute  the  claim  would  have  to 
be  filed  with  the  clerk  of  the  court:  Peaceable  Creek  C.  Co.  v.  Jack- 
son, 26  Okl.  1,  108  Pac.  Rep.  409,  412. 

2  See  $§  354  et  seq.,  this  Supplement,  ante,  and  notes. 

3  California.     Amended  by  act  of  May  1,  1911   (Stats.  &  Am. Its.   1911, 
pp.  1313  et  seq.). 

4  Oregon.     Compare  Coffey  v.  Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079; 
s.   c.,    52   Oreg.    545,    97   Pac.    Rep.    1081;   s.    c.,    52   Oreg.    546,   97    Pac.    Rep. 
1082. 

&  California.  The  statutory  original  contract  was  abolished  by 
amendment  of  May  1,  1911,  to  f  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

See  f{  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

e  Compare  "Filing  Contract,"  §§  294  et  seq.,  Treatise,  and  Supplement. 

^  Colorado.     Compare  Foley  v.  Coon,  41  Colo.,  432,  93  Pac.  Rep.  13,  14. 


151  FILING    CLAIM    OP    LIEN.  SS  422-426 

§  422.     Time  of  filing  claim.    In  general. 
Additional  matter  to  foot-note  20. 8 
Additional  matter  to  foot-note  21. 9 

§  423.     Same.    Computation  of  time. 
Additional  matter  to  foot-note  24. 10 

§  424.     Time  of  filing,  when  not  fixed  by  statute.11 

§  425.  Notice  of  completion  or  cessation  of  work.  Statu- 
tory provision. 

Additional  matter  to  foot-note  32. 12 

§  426.  Same.  Purpose  and  scope  of  provision.  Where 
the  notice  of  completion  is  prematurely  filed  by  the  owner 
before  actual  completion  or  substantial  completion,  and  the 
owner  and  claimant  regard  the  work  as  not  completed,  the 


8  California.     Hubbard   v.   Lee,    10   Gal.   App.   477,    480,    102   Pac.    Rep. 
528;   s.   c.,   6   Cal.   App.   602,   92   Pac.   Rep.    744. 

Colorado.  Rice  v.  Rhone  (Colo.),  Ill  Pac.  Rep.  585,  588.  But  see 
Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

Kansas.  Badger  L.  Co.  v.  Martin  (Kan.),  112  Pac.  Rep.  104;  Fossett 
v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833,  835. 

Oregon.  Grants  Pass  B.  &  T.  Co.  v.  Empire  M.  Co.  (Oreg-.),  113  Pac. 
Rep.  859.  See  Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac. 
Rep.  447,  451. 

Washington.  Pacific  L.  &  T.  Co.  v.  Dailey  (Wash.),  Ill  Pac.  Rep. 
869,  870. 

9  California.     Hubbard  v.  Lee,  10  Cal.  App.  477,  480,  102  Pac.  Rep.  528; 
s.  c.,  6  Cal.  App.  602,  609,  92  Pac.  Rep.  744;  Baker  v.  Lake  L.  C.  &  I.  Co., 
7  Cal.  App.   482,  484,   94  Pac.   Rep.   773. 

New  Mexico.  But  see  Baldridge  v.  Morgan  (N.  M.),  106  Pac.  Rep. 
342;  Nash  v.  Morgan  (N.  M.),  106  Pac.  Rep.  344;  Metz  v.  Romero  (N. 
M.),  106  Pac.  Rep.  344. 

Washington.  Lindley  v.  McGlauflin,  58  Wash.  636,  109  Pac.  Rep. 
118;  s.  c.,  57  Wash.  581,  107  Pac.  Rep.  355. 

10  New  Mexico.     See  Baldridge  v.  Morgan  (N.  M.),  106  Pac.  Rep.  342; 
Nash  v.  Morgan    (N.  M.),   106  Pac.   Rep.   344;   Metz  v.  Romero    (N.  M.), 
106  Pac.  Rep.  344. 

Washington.  Cascade  L.  Co.  v.  Aetna  I.  Co.,  56  Wash.  503,  106  Pac. 
Rep.  158;  Minneapolis  S.  &  M.  Co.  v.  Aetna  I.  Co.,  56  Wash.  699,  106* 
Pac.  Rep.  160. 

11  California.     See   §  1187,   Code   Civ.   Proc.,  as   amended  May   1,   1911 
(Stats.  &  Amdts.   1911,  pp.  1313  et  seq.). 

12  California.     See    §1187,   Code   Civ.   Proc.,   as  amended  May   1,    1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 


§§  426-428          MECHANICS'    LIENS— SUPPLEMENT.  J52 

filing  of  such  notice  does  not  afford  the  owner  protection 
as  a  limitation  of  time  for  filing  claims  of  lien.13 

§427.  Same.  Failure  of  owner  to  file  notice.14  Where 
no  notice  of  completion  was  filed  by  the  owner,  owner's 
claimants  could,  before  the  amendment  of  1911,  file  their 
claims  of  lien  within  ninety  days  after  the  actual  completion, 
or  120  days  from  cessation  of  work,  if  the  work  was  not  ac- 
tually completed,  that  is,  ninety  days  after  the  cessation  of 
work  for  thirty  days.15 

§  428.  Same.  In  case  of  structures.  The  time  of  filing 
a  claim  of  lien  by  the  owner's  claimants  before  the  amend- 
ments of  1911  to  Code  Civ.  Proc.  §  1187,  did  not  run  from 
the  time  of  such  claimants'  ceasing  work  but  from  the  time 
of  the  actual  or  constructive  completion  or  from  the  cessa- 
tion of  work  for  thirty  days,  in  the  absence  of  a  notice  of 
completion  or  of  cessation.16 

Where  several  years  were  consumed  in  the  alterations  of 
a  building  and  the  work  was  done  in  a  somewhat  frag- 
mentary manner,  but  was  not  done  in  separate  and  distinct 
sections,  and  material  was  not  furnished  under  separate 
and  distinct  contracts,  but  the  work  was  one  entire  under- 
taking, the  time  for  filing  claims  commenced  to  run  from  the 
time  when  the  alterations  were  actually  or  constructively 
completed.17 

Additional  matter  to  foot-note  42. 18 


13  California.     Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  229,  232,  101  Pac. 
Rep.  691.     See  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  484,  94  Pac. 
Rep.  773;  Robison  v.  Mitchell  (Cal.  Sup.),  114  Pac.  Rep.  984. 

14  California.     See  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266,  269.     See  §  428,  this  Supplement,  post. 

is  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
270,  96  Pac.  Rep.  788. 

16  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
269. 

IT  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
268,  96  Pac.  Rep.  788  (before  the  amendments  of  1911). 

is  Original  contractors 

Colorado.  Three  monthn  after  completion  of  building::  Foley  v. 
Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

Oregon.     After  completion  of  his  contract,  and  not  after  completion 


§§428    429 


FILING   CLAIM    OF    LIEN. 


Additional  matter  to  foot-note  43. 19 
Additional  matter  to  foot-note  44.20 
Additional  matter  to  foot-note  45.21 
Additional  matter  to  foot-note  48.22 
Additional  matter  to  foot-note  49.23 

§  429.     Same.    General  rule. 

Additional  matter  to  foot-note  52. 24 


of  building,  time  commences  to  run:  Coffey  v.  Smith,  52  Oreg.  538, 
97  Pac.  Rep.  1079;  s.  c.,  52  Oreg.  545,  97  Pac.  Rep.  1081;  s.  c.,  52  Oreg. 
546,  97  Pac.  Rep.  1082. 

19  Subcontractors: 

Colorado.  Within  two  months  next  after  completion  of  building:: 
Rice  v.  Rhone  (Colo.),  Ill  Pac.  Rep.  585,  588  (under  §  4033,  Rev. 
St.  1908),  (3  Mill's  Ann.  St.,  Rev.  Supp.) ;  Foley  v.  Coon,  41  Colo.  432, 
93  Pac.  Rep.  13,  14  (under  Sess.  Laws  1899,  p.  261,  c.  118). 

Kansas.  During  sixty  days  following  furnishing;  of  labor  or  ma- 
terial: Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac. 
Rep.  833,  835. 

New  Mexico.  See  Baldridge  v.  Morgan  (N.  M.),  106  Pac.  Rep.  342; 
Nash  v.  Morgan  (N.  M.),  106  Pac.  Rep.  344;  Metz  v.  Romero  (N.  M.), 
106  Pac.  Rep.  344. 

Oregon.  See  Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac. 
Rep.  447,  451. 

20  Owner's  material-man: 

Washington.     See  Rieflin  v.  Graf  ton   (Wash.),  115  Pac.  Rep.  851. 

21  Contractor's  material-man: 

Idaho.  See  Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac. 
Rep.  24,  26;  Valley  L.  Co.  v.  Driessel,  13  Idaho  662,  93  Pac.  Rep.  765, 
771. 

Oregon.  Thirty  days  after  completion  of  building:  Coffey  v.  Smith, 
52  Oreg.  538,  97  Pac.  Rep.  1079;  s.  c.,  52  Oreg.  545,  97  Pac.  Rep.  1081; 
s.  c.,  52  Oreg.  546,  97  Pac.  Rep.  1082  (under  B.  &  C.  Comp.,  §  5644). 

Washington.  Ninety  days  after  the  last  item  of  material  Is  sold 
and  delivered:  Rasmussen  v.  Liming,  50  Wash.  184,  96  Pac.  Rep.  1044; 
Brown  v.  Trimble,  48  Wash.  270,  93  Pac.  Rep.  317  (under  Ballinger's 
Ann.  Codes  &  Stats.,  §  5904). 

22  Contractor's  laborers: 

Washington.     See  Brown  v.  Trimble,  48  Wash.  270,  93  Pac.  Rep.  317. 

23  California.     Trifling  imperfection   in   completion   does  not  prevent 
time   running  within   which   to   file   claims   of   lien.     Seebach  v.   Kuhn, 
9  Cal.  App.  485,  488,  99  Pac.  Rep.  723. 

See  §  1187,  Code  Civ.  Proc.,  as  amended  May  1,  1911  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

24  Colorado.      Under  Sess.  Laws  1809,  p.  26,  c.  118,  the  principal  con- 
tractor has  three  months  after  completion,   and  his   subclaimants   or 
"subcontractors"  within  two  months  after  completion:     Foley  v.  Coon, 
41  Colo.  432,  93  Pac.  Rep.  13,  14. 

Idaho.  Under  one  continuous  contract  for  furnishing  materials, 
time  to  file  runs  from  last  item  of  account:  Valley  L.  Co.  v.  Driessel, 
13  Idaho  662,  93  Pac.  Rep.  765,  767;  and  see  Darlington  L.  Co.  v.  Har- 
ris. 107  Mo.  App,  148,  80  S.  W.  Rep.  688;  but  where  material  is  fur- 


§§430   431         MECHANICS'    LIENS  —  SUPPLEMENT. 

§  430.     Time  of  filing  claim.    Certificate  of  architect. 
Additional  matter  to  foot-note  ;">:{.  -r> 


§  431.  Same.  Substantial  or  actual  completion.  The 
furnishing  of  materials  gratuitously  to  replace  defective 
material,  or  doing  trifling  work,  is  generally  held  not  to 
operate  to  extend  the  time  within  which  liens  should  be 
filed,  particularly  when  it  is  in  the  nature  of  a  subterfuge.26 
But  in  California  it  was  held  that  where  the  work  was  part 
of  that  to  be  performed  under  the  original  contract,  the 
contractor  had  the  statutory  period  after  the  actual  com- 
pletion of  a  comparatively  trifling  part  of  the  work  within 
which  to  file  his  lien.27  And  if  the  owner  claims  that  the 
work  is  not  completed  and  some  trifling  work  is  done  there- 
after to  complete,  the  owner  is  estopped  to  claim  that  the 
contract  was  previously  completed.28 

If  the  owner  enters  into  occupation  of  the  improvements 
while  the  work  of  alteration  is  in  active  progress  and  about 

nished  for  a  structure  apparently  being1  erected  under  one  original 
contract,  but  In  reality  under  several,  the  material-man  without  no- 
tice may  file  his  claim  within  the  prescribed  time  after  furnishing  the 
last  Item,  where  the  statute  provides  a  limitation  for  filing  claims 
after  the  last  Item:  Valley  L.  Co.  v.  Drlessel,  supra;  Darlington  L. 
Co.  v.  Harris,  supra.  But  If  the  material-man  had  notice  of  the  several 
original  contracts,  he  can  not  tack  the  last  item  of  his  account  to  the 
first  to  extend  the  time  for  filing  claims  of  Hen:  Valley  L.  Co.  v. 
Driessel,  supra. 

25  Oregon.      The    delay    In    Usiiliin    arbitrator'*    certificate    provided 
for  by  the  contract  does  not  extend  the  time  to  file  claim:     Coffey  v. 
Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079;  s.  c.,  52  Oreg.  545,  97  Pac.  Rep. 
1081;  s.  c..  52  Oreg.  546,  97  Pac.  Rep.  1082. 

26  Idaho.     Valley  L.   &  Mfg.   Co.  v.   Nlckerson,    13   Idaho  682.   93   Pac. 
Rep.  24,  26;  Valley  L.  &  Mfg.  Co.  v.  Driessel,  13  Idaho  662,  93  Pac.  Rep. 
765. 

KIIHMIIH.     Badger  L.  Co.  v.  Parker   (Kan.),  116  Pac.  Rep.   242. 

Nevada.  Tonopah  L.  Co.  v.  Nevada  A.  Co.,  30  Nev.  445,  97  Pac. 
Rep.  636,  639. 

Oklahoma.  Jones  v.  Balsley  (Okl.),  Ill  Pac.  Rep.  942;  s.  c.,  25  Okl. 
344.  106  Pac.  Rep.  830. 

Oregon.  Crane  Co.  v.  Ellis  (Oreg.),  114  Pac.  Rep.  475;  Coffey  v. 
Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079;  s.  c.,  52  Oreg.  545,  97  Pac.  Rep. 
1081;  s.  c..  52  Oreg.  646,  97  Pac.  Rep.  1082. 

Washington.     Rieflin  v.  Grafton   (Wash.),  115  Pac.  Rep.  851. 

27  California.     Rockwell  v.  Light,  6  Cal.  App.  563,  92  Pac.  Rep.  649. 

28  California.     AH    to    entoppel    of    owner    by    HtatementB    relative    to 
completion  i     See   Hubbard   v.   Lee,   6   Cal.   App.    602,    608,   92   Pac.   Rep. 
744;  s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  538. 


155  FILING    CLAIM    OF    LIEN.  S|  43 

half  completed  so  that  part  can  be  occupied,  the  occupation  of 
the  building  not  being  inconsistent  with  further  work  on  the 
same,  the  time  for  filing  liens  does  not  start  to  run  by  reason 
of  such  occupation.29 

Additional  matter  to  foot-note  54. 30 

§  432.  Same.  Abandonment  of  the  work.  Where  the 
claim  is  filed  within  time  after  the  actual  completion  of  the 
building  but  is  not  filed  within  time  after  a  notice  of  cessa- 
tion and  abandonment  filed  by  the  owner  has  set  running 
the  statutory  time  for  filing  the  claim,  the  lien  is  lost.31 

Additional  matter  to  foot-note  57. 32 

§  433.  Same.  Thirty  days'  cessation  from  labor.  Sec- 
tion 1187  of  the  Code  of  Civil  Procedure,  as  it  was  amended 
in  1897  provided  first,  after  declaring  that  trivial  imperfec- 
tions should  not  avail  to  avoid  completion,  that  the  occupa- 
tion or  use  of  a  building,  improvement  or  structure  by  the 
owner  or  his  representative,  together  with  cessation  from 
labor  for  thirty  days  upon  it,  or,  second,  the  acceptance  by 
the  owner  or  his  agent  of  the  building,  together  with  cessa- 
tion from  labor  for  thirty  days  upon  it,  should,  for  the 
purposes  of  lien  claimants,  be  deemed  equivalent  to  a  com- 

29  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  CaT.  App.  268, 
269,  96  Pac.  Rep.  728. 

so  California.  See  Rockwell  v.  Light,  6  Cal.  App.  563,  92  Pac.  Rep. 
649.  But  see  Seebach  v.  Kuhn,  9  Cal.  App.  485,  488,  99  Pac.  Rep.  723. 

New  Mexico.  Time  for  filing  subcontractor's  claim  does  not  com- 
mence to  run  from  nor  await  the  completion  of  the  building;  the 
statute  fixes  the  time  after  which  the  claim  can  not  be  filed  and  does 
not  fix  the  time  during  which  it  may  be  filed:  Baldridge  v.  Morgan 
(N.  M.),  106  Pac.  Rep.  342;  Nash  v.  Morgan  (N.  M.),  106  Pac.  Rep.  344; 
Metz  v.  Romero  (N.  M.),  106  Pac.  Rep.  344  (disclaiming  California  and 
Kansas  doctrines  as  to  premature  filing,  in  this  regard). 

Oregon.  But  see  Coffey  v.  Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079; 
s.  c.,  52  Oreg.  545,  97  Pac.  Rep.  1081;  s.  c.,  52  Oreg.  546,  97  Pac.  Rep. 
1082. 

31  California.      Robison    v.    Mitchell    (Cal.    Sup.),    114    Pac.    Rep.    984, 
986  (before  the  amendments  of  1911). 

32  California.     See  Robison  v.  Mitchell  (Cal.  Sup.),  114  Pac.  Rep.  984, 
988;  and  see  §  433,  this  Supplement,  post. 

Johnson  v.  La  Grave,  102  Cal.  324,  326,  36  Pac.  Rep.  651,  is  overruled 
in  Robison  v.  Mitchell  (Cal.  Sup.),  114  Pac.  Rep.  984,  988,  so  far  as 
repugnant.  The  latter  case,  however,  was  that  of  a  valid  contract. 


§§433-435          MECHANICS'    LIENS— SUPPLEMENT.  ^55 

pletion.  Thus,  while  under  the  old  law  unfinished  structures 
were  deemed  constructively  completed  when  there  had  been 
cessation  from  labor  for  thirty  days,  under  the  law  as 
amended  in  1897,  they  were  not  deemed  constructively 
completed,  and  the  owner  to  set  the  time  running  for  the 
filing  of  claims  of  lien  had  first  to  file  his  notice  of  cessation. 

Again,  under  the  law  prior  to  1897,  either  occupation  or 
acceptance  was  deemed  a  completion  which  set  in  motion 
the  time  for  filing  claims;  but  under  the  amendment  of  1897, 
either  or  both  the  occupation  and  the  acceptance  must  be 
coupled  with  cessation  from  labor  for  thirty  days  upon 
the  structure  before  the  constructive  completion  was  estab- 
lished and  the  time  set  running.  Also,  under  the  amend- 
ment of  1897,  constructive  completion  by  way  of  occupation 
or  acceptance  was  made  to  apply  to  all  cases,  whether  the 
work  had  been  performed  under  contract  or  not,  but  under 
the  law  prior  thereto,  such  constructive  completion  was 
declared  to  apply  only  "in  case  of  contracts."33 

Additional  matter  to  foot-note  59.34 

§  434.  Same.  Agreements  affecting  time  of  filing  claims. 
Giving  credit.35 

§  435.     Same.    Void  contract. 
Additional  matter  to  foot-note  71.36 
Additional  matter  to  foot-note  72.37 


33  California.     Robison    v.    Mitchell    (Cal.    Sup.),    114    Pac.    Rep.    984, 
987    (citing  Marble  L.   Co.   v.   Lordsburg  H.   Co.,   96  Cal.    332,   31   Pac. 
Rep.  164).     See  Baker  v.  Lake  L.  &  I.  Co.,  7  Cal.  App.  482,  94  Pac.  Rep. 
773    (use  and  occupation   or  acceptance  must  be  coupled  with   cessa- 
tion for  thirty  days  to  constitute  constructive  completion). 

34  California.     See  Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  227,  232,  101 
Pac.  Rep.  691. 

as  See    11187,   Code   Civ.    Proc.,    as   amended   May    1,    1911    (Stats.    & 
Amdts.  1911,  pp.  1313  et  seq.). 

36  California.     The    Statutory    Original    Contract    was   abolished    by 
amendment  of  May  1,  1911,  to  I  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

See  §{258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 
Colorado.     Compare  Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

37  California.     See  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266,  269,  96  Pac.  Rep.  728. 


157  FILING   CLAIM    OF    LIEN.  82  4.35    4,37 

§  436.     Same.    Mines  and  mining  claims. 

Additional  matter  to  foot-note  78. 38 
Additional  matter  to  foot-note  83. 39 
§437.  Same.  Grading,  etc.40 

38  California.     Robison  v.  Mitchell  (Cal.  Sup.),  114  Pac.  Rep.  984,  986. 

39  New  Mexico.     Owner's  claimant,  within  ninety  days  after  comple- 
tion of  contract:     Gray  v.  New  Mexico  P.  S.  Co.   (N.  M.),  110  Pac.  Rep. 
603,  605. 

40  See,  generally,  §§  133,  139,  156  and  166  et  seq.,  Treatise  and  Sup- 
plement. 


§§438-443          MECHANICS'    LIENS — SUPPLEMENT. 

CHAPTER  XXII. 

LIMITATION   ON   LIENS.     EXTENT   OF  LIENS. 

§438.     Territorial  or  "property"  extent  of  lien. 
Additional  matter  to  foot-note  I.1 
Additional  matter  to  foot-note  5.2 

§  439.     Same.     Statutory  provision/5 

§  440.     Same.     Space  for  convenient  use  and  occupation. 
Additional  matter  to  foot-note  10.4 
Additional  matter  to  foot-note  II.5 

§  441.     Same.    Structures.    Illustrations. 

?  442.  Same.  Land  affected  when  building  is  destroyed 
or  removed. 

Additional  matter  to  foot-note  15.6 

§  443.     Same.    Mines  and  mining  claims. 
Additional  matter  to  foot-note  16." 

1  As  to  logger's  Hen:     See  Alderson  v.  Lee,  62  Oreg.  92.  96  Pac.  Rep. 
234.    236;   Grimm   v.   Pacific   C.   Co.,    50   Wash.    415,    97    Pac.    Rep.    297; 
O'Connor  v.  Burnham,  49  Wash.  443,  95  Pac.  Rep.  1013. 

As  to  Hen  extending  to  appurtenances:  See  Park  City  M.  Co.  v. 
Comstock  S.  M.  Co.  (Utah),  103  Pac.  Rep.  254,  260. 

2  Montana.     Definition  of  "property":     See  Helena  W.  Co.  v.  Settles, 
37  Mont.   237,  95  Pac.  Rep.  838. 

3  California.     See    JJ185,   Code   Civ.    Proc.,   as   amended   May    1,    1911 
(Stats.  &   Am. Its.   1911,  pp.   1313  et  seq.). 

4  Utah.     Park   City  M.   Co.   v.  Comstock   S.   M.  Co.    (Utah),  103   Pac. 
Rep.  254.  259. 

B  Ala*kn.  Lien  can  not  include  another  structure  against  which 
claim  of  lien  has  not  been  filed,  and  for  which  materials  not  fur- 
nished or  used:  Burr  v.  House,  3  Alaska  641,  649. 

I'tah.  Volker-Scowcroft  L.  Co.  v.  Vance  (Utah),  103  Pac.  Rep.  970, 
974;  s.  c.,  33  Utah  74,  88  Pac.  Rep.  896. 

e  California.  Watson  v.  Alta  I.  Co.,  12  Cal.  App.  560,  564,  108  Pac. 
Hep.  48;  Watson  v.  Alta  I.  Co.,  12  Cal.  App.  566,  108  Pac.  Rep.  50. 

Montana.  See  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108 
Pac.  Rep.  353,  357. 

I'tah.  Compare  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah),  103 
Pac.  Rep.  254,  259. 

T  Compare  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah),  103  Pac. 
Rep.  254,  259. 


159  EXTENT    OF    LIENS.  SS  444.449 

§  444.     Same.    Several  mining  claims. 
Additional  matter  to  foot-note  18. 8 

§  445.     Same.     Mining  machinery. 
.Additional  matter  to  foot-note  19. 9 
Additional  matter  to  foot-note  22. 10 
Additional  matter  to  foot-note  23.11 

§  446.     Same.    Grading  and  other  work.    Lot.12 

§  447.     Property  viewed  as  an  entirety. 
Additional  matter  to  foot-note  28. 13 
Additional  matter  to  foot-note  29. 14 
Additional  matter  to  foot-note  3*0. 15 
Additional  matter  to  foot-note  31. 16 

§  448.     Same.    Distinct  objects  on  one  parcel  of  land. 

§  449.     Same.     Railroads,   canals,   gas-works   and  water- 
works. 

Additional  matter  to  foot-note  34. 1T 


8  Montana.     Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac. 
Rep.   353,   357. 

Oklahoma.     But   see   Peaceable   Creek   C.   Co.   v.   Jackson,    26    Okl.    1, 
108   Pac.  Rep.   409,   412. 

9  New   Mexico.     Mine   held   as    required   for   the    convenient   use   and 
occupation  of  mill  for  which  material  was  furnished:     Steams-Roger 
Mfg-.  Co.  v.  Aztec  G.  M.  &  M.  Co.,   14  N.  M.  300,  93  Pac.  Rep.   706,   710. 

10  Utah.     See   Park   City   M.   Co.   v.    Comstock   S.   M.   Co.    (Utah),    103 
Pac.   Rep.   254,   257. 

11  Utah.     Compare  Park  City  M.   Co.  v.   Comstock  S.   M.   Co.    (Utah), 
103  Pac.  Rep.   254,  258. 

12  California.     §  1191,  Code  Civ.  Proc.,  was  not  amended  by  act  May 
1,  1911   (Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

13  Idaho.     See  Steltz  v.  Armory  Co.,  15  Idaho  551,  99  Pac.  Rep.  98,  101. 
Montana.     Extent   of   lien    in   case    other   than   mine:     See   Mclntyre 

v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac.  Rep.  353,  356. 

i*  Colorado.     Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo. 
461,  94  Pac.  Rep.  570,  573. 

15  Colorado.     Lien    is    on    entire    railroad;    claim    of    lien    need    not 
segregate    amount    in    each    county:     Barnes    v.    Colorado    Springs    & 
C.  C.  D.  Ry.  Co.,  42  Colo.  461,  94  Pac.  Rep.  570,  573. 

16  Washington.     See  Cornelius  v.   Washington  S.   Laundry,   52   Wash. 
272,  100  Pac.  Rep.  727,  729. 

IT  Colorado.     See  Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42 
Colo.  461,  94  Pac.  Rep.  570,  573. 


§§  449-451          MECHANICS'    LIENS— SUPPLEMENT. 

Additional  matter  to  foot-note  36. 18 

£  450.  Same.  Lien  on  building  alone.  False  representa- 
tions as  to  ownership. 

§  451.     Same.    Mining  claims  and  mines. 
Additional  matter  to  foot-note  38. 10 

lilnlio.  Naylor  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  789,  96  Pac. 
Rep.  573,  578;  s.  c.,  95  Pac.  Rep.  827. 

\\noiiiiiKtoii.  Lien  on  building's,  structures,  ditches,  etc.,  constitut- 
ing a  power  and  irrigation  plant:  See  Gilbert-Hunt  Co.  v.  Parry 
(Wash.),  110  Pac.  Rep.  541,  542. 

is  New  Mexico.  See  Steams-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co., 
14  N.  M.  300.  93  Pac.  Rep.  706,  710. 

10  Montana.  As  to  rule  now  provided  by  5  7293,  Rev.  Codes,  as  to 
extent  of  lien  on  mining  claims:  See  Mclntyre  v.  Montana  G.  M.  M. 
Oo.,  41  Mont.  87,  108  Pac.  Rep.  353,  356.  Claim  need  not  be  limited 
to  specific  portion  of  property  on  which  work  was  done:  Mclntyre  v. 
Montana  G.  M.  M.  Co.,  supra. 

N«-\V  Mexico.  Stearns-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14 
N.  M.  300,  93  Pac.  Rep.  706,  710. 

Oregon.  See  Escott  v.  Crescent  C.  &  N.  Co.  (Oreg.),  106  Pac.  Rep. 
452,  454,  455. 

Utah.  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah),  103  Pac. 
Rep.  254.  261. 

I  mil.  "Taking  the  lien  in  question  as  an  illustration,  if  any  one 
had  furnished  material  for  the  shafthouse  and  hoisting  works  and 
had  filed  a  lien  upon  these  structures  alone,  and  this  were  permitted, 
the  very  entrance  to  the  mine  could  be  disconnected  from  the  mine 
itself.  The  shafthouse  and  hoisting  works  would  thus  become  useless 
without  the  mine,  and  it  would  be  a  useless  thing  without  an  en- 
trance thereto.  If  a  portion  of  the  mine  may  be  thus  segregated,  it 
may  result  in  dismembering  and  in  effect  destroying  almost  the  entire 
value  of  the  mine  as  such.  No  one  would  contend  that,  if  a  mechanic 
had  made  repairs  upon  an  expensive  entrance  to  a  hotel  or  other 
private  structure,  such  as  the  heating  plant  connected  with  such  struc- 
ture, he  could  claim  a  lien  upon  the  entrance  or  heating  plant  alone, 
and  In  enforcing  the  lien  could,  by  judicial  process,  sell  the  entrance 
or  heating  plant  to  one  person  while  the  main  structure  belonged 
to  another,  and  in  this  way  practically  destroy  the  use  of  the  entire 
structure  until  the  owner,  or  some  purchaser  of  the  main  structure, 
yielded  to  the  terms  of  the  purchaser  of  the  entrance  or  heating 
plant.  The  doctrine  which,  for  the  purpose  of  mechanics'  liens, 
treats  mines  and  mining  claims  that  are  being  actively  operated  and 
worked  as  a  unit  the  same  as  other  structures,  is  so  manifestly  just 
and  equitable,  and  so  well  responds  to  the  general  utility  involved, 
that  it  seems  like  a  work  of  supererogation  to  present  any  arguments 
or  reasons  why  it  should  prevail.  It  has,  however,  been  held  that 
for  improvements  made  on  a  mill  site  no  lien  can  ordlnarly  be  ac- 
quired against  a  mine  or  mining  claim.  Colorado  Iron  Works  v. 
Taylor,  12  Colo.  App.  451,  55  Pac.  Rep.  942.  This  ruling  is  based  upon 
the  ground  that  neither  the  mill  nor  mill  site  is  necessarily  a  part  of 
the  mine.  In  this  case  it  was  not  shown  what  kind  of  a  mill  it  was. 


161  EXTENT   OF    LIENS.  §§451-455 

Additional  matter  to  foot-note  39. 20 

§  452.     The  lien  as  limited  by  contract.21 

§  453.     Same.    Statutory  provision.21 

§  454.     Same.    General  interpretation  of  provision. 
Additional  matter  to  foot-note  46. 22 
Additional  matter  to  foot-note  47. 23 

§  455.  Same.  Contract  as  notice.  Where  the  subcon- 
tractor agrees  to  perform  the  work  under  the  original  con- 
tract, the  terms  and  conditions  of  which  are  made  a  part 
of  the  subcontract,  if  the  contractor  can  not  recover 
on  the  original  contract  by  reason  of  the  destruction  of  the 
building  before  completion,  the  subcontractor  can  not  re- 
cover against  the  contractor.24 

Additional  matter  to  foot-note  49. 25 


except  that  it  was  erected  on  the  mining  claims,  and  thus  became  a 
part  of  the  mining  claims;  and  hence  the  rule  announced  in  the  Colo- 
rado case  did  not  apply":  Park  City  M.  Co.  v.  Comstock  S.  M.  Co. 
(Utah,  June  12,  1909),  103  Pac.  Rep.  254,  261. 

20  Montana.     Compare  Mclntyre  v.  Montana  G.   M.  M.   Co.,   41  Mont. 
87,  108  Pac.  Rep.  353,  357. 

Utah.  Compare  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah), 
108  Pac.  Rep.  254,  261. 

21  California.     See   §  1183,   Code  Civ.   Proc.,   as   amended  May    1,    1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

22  California.     McCue  v.  Jackman,  7  Gal.  App.  703,  95  Pac.  Rep.  673; 
Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  413,  101  Pac.  Rep.  307. 

Colorado.  As  to  abandonment:  See  Rice  v.  Rhone  (Colo.),  Ill  Pac. 
Rep.  585,  587. 

Kansas.  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep. 
1003,  1005;  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac. 
Rep.  833,  836. 

Oklahoma.  Jones  v.  Balsley  (Okl.),  Ill  Pac.  Rep.  942;  s.  c.,  25  Okl. 
344,  106  Pac.  Rep.  830. 

Washington.  But  see  Rieflin  v.  Grafton  (Wash.),  115  Pac.  Rep.  851, 
853. 

23  California.     Stockton  L.  Co.  v.  Schuler,   155  Cal.  411,  412,  101  Pac. 
Rep.  307;  D.  L.  Nofziger  L.  Co.  v.  Waters,  10  Cal.  App.  89,  92,  101  Pac. 
Rep.  38. 

Kansas.  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac. 
Rep.  833,  835. 

24  California.     Watson  v.  Alta  I.  Co.,   12  Cal.  App.  560,   565,  108  Pac. 
Rep.  48;  Watson  v.  Alta  I.  Co.,  12  Cal.  App.  566,  108  Pac.  Rep.  50. 

25  Oregon.     Compare  Crane  Co.  v.  Erie  H.  Co.   (Oreg.),  112  Pac.  Rep. 
430. 

Bloom's  Sup. — 11 


§§  456-458  MECHANICS'    LIENS— SUPPLEMENT.  162 

§  456.     Same.    Price.    Value. 
Additional  matter  to  foot-note  52.26 

S  457.     Same.     Contract  of  subcontractor  and  contractor. 
Additional  matter  to  foot-note  53.27 

§  458.     Same.     Claimants  under  subcontractors. 
Additional  matter  to  foot-note  54.28 


26  "Price"  as  Indicating'  money  or  some  other  equivalent  in  contract 
for  sale  of  mine:     Compare  Kinard  v.  Jordan,  10  Cal.  App.  219,  101  Pac. 
Rep.  696,  698. 

27  Oregon.     Compare  Crane  Co.  v.  Erie  H.  Co.  (Oregr.),  112  Pac.  Rep. 
430. 

28  Idaho.     Steltz  v.  Armory  Co.,  15  Idaho  651,  99  Pac.  Rep.  98,  100. 


ESTATES    SUBJECT — BY    CONTRACT.          SR  459-461 


CHAPTER  XXIII. 

» 

LIMITATIONS    ON   LIENS    (CONTINUED).      ESTATES    AND 
INTERESTS    SUBJECT    TO    LIENS. 

I.     BY  CONTRACT. 

§  459.    Plan  of  discussion. 

§  460.     Estates  or  interests  bound  by  contractual  relation 
with  the  holder  thereof.    Statutory  provision. 

Additional  matter  to  foot-note  3.1 

§  461.    Same.    General  rule. 
Additional  matter  to  foot-note  4.2 


1  Husband  and  wife: 

Federal.  See  Healey  I.  M.  Co.  v.  Green  (C.  C.,  N.  C.),  181  Fed.  Rep. 
890. 

Kansas.  Transfer  of  owner's  account  to  name  of  husband:  See 
Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac.  Rep.  80,  81. 

Husband  as  agent  of  wife:  See  Chicago  L.  &  C.  Co.  v.  Washington, 
supra. 

Acquirement  of  other  Interests  by  wife:  See  Robert  Garrett  L..  Co. 
v.  Loftus,  82  Kan.  556,  109  Pac.  Rep.  179,  181. 

Oklahoma.  Husband  as  agent  of  wife:  Bloch  v.  Pearson,  19  Okl. 
422,  91  Pac.  Rep.  714. 

Husband's  Interest  also  bound:     See  Bloch  v.  Pearson,   supra. 

2  Arizona.     Lien    not    given    on    mere    option    on    mining    property: 
Harper  v.  Independence  D.  Co.   (Ariz.),  108  Pac.  Rep.  701,  704. 

California.  Right  of  possession  to  mine  for  oil,  real  estate:  Gra- 
ciosa  O.  Co.  v.  Santa  Barbara  County,  155  Gal.  140,  99  Pac.  Rep.  483, 
486  (regarding  taxation). 

Colorado.  Right  to  use  water  for  irrigation,  real  estate:  Davis  v. 
Randall,  44  Colo.  488,  99  Pac.  Rep.  322,  324. 

Idaho.  Title  subject  to  be  defeated  upon  condition  subsequent: 
Naylor  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  789,  96  Pac.  Rep.  573, 
578,  95  Pac.  Rep.  827. 

Rights  held  mnder  Carey  Act  for  construction  of  canal:  Nelson 
Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789, 
792,  92  Pac.  Rep.  980. 

Leasehold  or  other  .estate:  Nelson  Bennett  Co.  v.  Twin  Falls  L.  & 
W.  Co.,  supra. 

Possessory  rights  of  locator  on  mining  property,  fee  in  Federal 
government:  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.  789,  792,  92  Pac.  Rep.  980. 

Husband  and  wife: 

Idaho.     See  Larson  v.  Carter,  14  Idaho  511,  94  Pac.  Rep.  825. 


§§461-463          MECHANICS'    LIENS— SUPPLEMENT. 

Additional  matter  to  foot-note  5.3 

§  462.     Same.    Fee  or  legal  title  subject  to  lien. 
Additional  matter  to  foot-note  6.4 

§  463.    Same.    Vendee  being  in  possession. 
Additional  matter  to  foot-note  8.5 


Kamia*.  Badger  L.  Co.  v.  Malone,  8  Kan.  App.  692,  54  Pac.  Rep.  692; 
Chicago  L.  Co.  v.  Osborn,  40  Kan.  168,  19  Pac.  Rep.  656;  Robert  Qar- 
rett  L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac.  Rep.  179,  181. 

IliiMband  and  wife:  See  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan. 
556,  109  Pac.  Rep.  179,  180. 

Where  a  person  IN  In  undisputed  possession  under  a  claim  of  right 
of  possession  when  the  improvement  is  made,  in  the  absence  of  a 
contrary  showing,  a  conveyance  will  be  held  to  be  a  ratification  of  a 
prior  equitable  title,  or  merging  in  the  legal  title,  and  the  lien  will 
be  held  to  attach  to  the  whole  estate:  .  Robert  Garrett  L.  Co.  v. 
Loftus,  82  Kan.  556,  109  Pac.  Rep.  179,  181,  explaining  Lumber  Co.  v. 
Fretz,  51  Kan.  134,  32  Pac.  Rep.  908. 

Oklahoma.     Bloch  v.  Pearson,  19  Okl.  422,  91  Pac.  Rep.  714. 

Interest  of  lessee  of  school  lands,  fee  in  United  States:  Bloch  v. 
Pearson,  19  Okl.  422,  91  Pac.  Rep.  714;  Jarrell  v.  Block,  19  Okl.  467, 
92  Pac.  Rep.  167;  Crutcher  v.  Bloch,  19  Okl.  246,  91  Pac.  Rep.  895. 

Oregon.     Alaska  P.  Co.  v.  Bingham  (Oreg.),  115  Pac.  Rep.  159,  160. 

It  Is  always  in  the  power  of  the  claimant  to  ascertain  the  Interest 
therein  of  the  person  with  whom  he  is  contracting,  and  if  he  neglects 
this  necessary  precaution,  the  courts  ought  to  allow  him  to  suffer 
the  consequences  of  his  negligence,  rather  than  to  saddle  the  loss 
upon  innocent  parties  by  a  forced  construction  of  the  law:  Alaska 
P.  Co.  v.  Bingham  (Oreg.),  115  Pac.  Rep.  159,  160. 

S  Arlaona.  Owner  of  mere  option  neither  vendee  nor  agent  of 
owner:  Harper  v.  Independence  D.  Co.  (Ariz.),  108  Pac.  Rep.  701,  704. 

Kansas.     Potter  v.  Conley    (Kan.),  112  Pac.   Rep.   608. 

But  mere  license  to  explore  for  minerals,  and  take  oil  as  personal 
property,  only  incorporeal  hereditament,  profit  a  prendre:  See  Phil- 
lips v.  Springfield  C.  O.  Co.,  76  Kan.  783,  92  Pac.  Rep.  1119;  Martin  v. 
Springfield  C.  O.  Co.,  77  Kan.  861,  92  Pac.  Rep.  1119. 

Oklahoma.  Tenancy  from  month  to  month;  estate  for  life  or  years, 
mortgagor's  right  of  redemption,  interest  of  person  in  possession 
claiming  title:  See  Crutcher  v.  Bloch,  19  Okl.  246,  91  Pac.  Rep.  895. 

4  Kansas.  But  see  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109 
Pac.  Rep.  179,  181. 

3  Colorado.  As  to  first  Colorado  note,  see  Hall  v.  Cudahy,  46  Colo. 
324,  104  Pac.  Rep.  415  (regarding  Shapleigh  v.  Hull,  21  Colo.  419,  41 
Pac.  Rep.  1108,  interest  of  both  vendor  and  vendee  bound). 

Oregon.     See  Alaska  P.  Co.   v.   Bingham    (Oreg.),   115   Pac.  Rep.   159. 

Utah.     Belknap  v.  Condon,  34  Utah,  213,  97  Pac.  Rep.  Ill,  114. 

Claimant  can  not  change  account  from  constructing  vendee  to 
vendor:  Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Ill,  114. 

A  mere  expectation  by  the  owner  that  the  purchaser  will  make  im- 
provements is  not  sufficient  to  establish  the  relation  of  principal  and 
agent  between  the  vendor  and  vendee,  so  as  to  impose  a  lien  upon 
the  interest  of  the  vendor;  nor  would  mere  permission  by  the  vendor 


ESTATES    SUBJECT — BY    CONTRACT.  SS  4~64-467 

§  464.     Same.    Lessee  being  in  possession. 

Additional  matter  to  foot-note  10.6 
Additional  matter  to  foot-note  14.7 

§  465.     Same.    Title  being  held  in  trust. 
Additional  matter  to  foot-note  II.8 

§  466.     Same.    Interest  of  vendee  in  possession  bound. 
Additional  matter  to  foot-note  12.9 

§  467.     Same.    Interest  of  lessee  bound. 

Additional  matter  to  foot-note  14. 10 


to  the  vendee  to  make  such  improvements,  nor  would  mere  knowledge 
or  acquiescence  on  the  part  of  the  owner:  Belknap  v.  Condon,  34 
Utah  213,  97  Pac.  Rep.  Ill,  114. 

6  Arizona.     Contra,  as  to  mere   option:     Harper  v.   Independence   D. 
Co.   (Ariz.),  108  Pac.  Rep.  701,  704. 

Kansas.  Estate  of  owner  not  subject  to  lien,  unless  lessee,  agent 
or  trustee  of  the  owner:  Potter  v.  Conley  (Kan.),  112  Pac.  Rep.  608 
(under  §  649,  Code  Civ.  Proc. — Gen.  Stat.  1909,  §  6244). 

OH  or  gas  lease  conveying  no  present  vested  interest  in  the  oil  and 
gas  in  place,  not  subject  to  lien:  Phillips  v.  Springfield  C.  O.  Co., 
76  Kan.  783,  92  Pac.  Rep.  1119;  Martin  v.  Springfield  C.  O.  Co.  77  Kan. 
851,  92  Pac.  Rep.  1119. 

Utah.  Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Rep.  Ill,  113,  114 
(under  §1372,  Cop.  Laws  1907). 

Washington.     Shaw  v.   Spencer,   57  Wash.  587,   107  Pac.  Rep.   383. 

Interest  of  lessor  (fee)  bound;  interest  of  lessee  not  bound:  See 
Housekeeper  v.  Livingstone,  48  Wash.  209,  93  Pac.  Rep.  217. 

Obligation  to  repair  on  lessee,  unless  otherwise  expressly  agreed: 
Hockersmith  v.  Ferguson  (Wash.),  116  Pac.  Rep.  11. 

"Where  lessee  repairs,  lien  subject  to  conditions  of  lease  and  subor- 
dinate to  rights  of  lessor:  Cornelius  v.  Washington  S.  L.(  52  Wash. 
272,  100  Pac.  Rep.  727,  729. 

7  Oklahoma.     But  see  Christy  v.  Union  O.   &  G.  Co.    (Okl.),   104  Pac. 
Rep.   740;  Shirley  v.  Union  O.  &  G.  Co.   (Okl.),  104  Pac.  Rep.   742. 

8  Colorado.     See  Hall  v  Cudahy,  46  Colo.  324,  104  Pac.  Rep.  415,  fol- 
lowing Shapleigh  v.  Hull,  21  Colo.  419,  41  Pac.  Rep.  1108. 

9  Colorado.     See    Hall    v.    Cudahy,    46    Colo.    324,    104    Pac.    Rep.    415 
(lien   against  interest  of  both  vendor  and  vendee). 

Kansas.  Forfeiture  of  contract  of  sale:  See  Badger  L.  Co.  v.  Par- 
ker (Kan.),  116  Pac.  Rep.  242. 

Oregon.  Forfeited  Interest:  See  Alaska  P.  Co.  v.  Bingham  (Oreg.), 
115  Pac.  Rep.  159. 

10  Arizona.     Lien  not  upon  mere  option  on  mining  property:    Harper 
v.  Independence  D.  <3o.  (Ariz.),  108  Pac.  Rep.  701,  704. 

Montana.  See  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108 
Pac.  Rep.  353,  357.  . 

Utah.  Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Rep.  Ill,  113,  114 
(under  §  1372,  Comp.  Laws  1907). 


§§  467    468         MECHANICS'    LIENS — SUPPLEMENT. 

Additional  matter  to  foot-note  18. n 
Additional  matter  to  foot-note  19.12 

§  468.     Same.    Homestead  bound. 
Additional  matter  to  foot-note  20. 13 
Additional  matter  to  foot-note  21. 14 


Oklahoma.  Crutcher  v.  Bloch,  19  Okl.  246,  91  Pac.  Rep.  895;  Jar- 
rell  v.  Block.  19  Okl.  467,  92  Pac.  Rep.  167;  Christy  v.  Union  O.  &  G. 
Co.  (Okl.).  114  Pac.  Rep.  740;  Shirley  v.  Union  O.  &  Q.  Co.  (Okl.),  114 
Pac.  Rep.  742. 

Washington.  Owen  v.  Casey,  48  Wash.  673,  94  Pac.  Rep.  473  (clear- 
ing: land).  But  contra,  where  lessor  makes  repairs:  See  Housekeeper 
v.  Livingstone.  48  Wash.  209,  93  Pac.  Rep.  217,  219. 

See  Cornelius  v.  Washington  S.  L..  52  Wash.  272,  100  Pac.  Rep.  727. 
729. 

See  S  464,  this  Supplement,  ante,  and  notes. 

11  Kansas.     Lien    on    defaulted    lease,    valueless!     Potter    v.    Conley 
(Kan.),   112  Pac.  Rep.   608. 

Montana.  Contract  of  lease  held  option  which  is  strictly  construed: 
Snider  v.  Yarmouth  (Mont.),  115  Pac.  Rep.  411. 

Washington.  Cornelius  v.  Washington  S.  L.,  52  Wash.  272,  100  Pac. 
Rep.  727,  729. 

12  Washington.     See   Cornelius   v.   Washington   S.   L.,   52   Wash.    272, 
100  Pac.  Rep.  727,  729. 

is  Oklahoma.  No  lien  upon  homestead  of  Chlckasaw  Indian :  See 
Keel  v.  Ingersoll  (Okl.),  Ill  Pac.  Rep.  214. 

Utah.  See  Volker-Scowcroft  L.  Co.  v.  Vance  (Utah),  103  Pac.  Rep. 
970,  973;  s.  c.,  33  Utah  74,  88  Pac.  Rep.  896. 

14  See  also  S  460,  ante,  and  !|  470  and  571,  post.  Treatise  and  this 
Supplement. 

Utah.  Volker-Scowcroft  L.  Co.  v.  Vance  (Utah),  103  Pac.  Rep.  970, 
explaining  s.  c.,  32  Utah  74,  88  Pac.  Rep.  896. 

Washington.     Olson  v.  Gooodsell,  56  Wash.  251,  105  Pac.  Rep.  463. 


167  ESTATES  SUBJECT — BY  ESTOPPEL.     SS  469-471 


CHAPTER  XXIV. 

LIMITATIONS    ON    LIENS    (CONTINUED).      ESTATES    AND 
INTERESTS    SUBJECT   TO   LIENS. 

II.     BY   ESTOPPEL.      NOTICE   OF  NON-RESPONSIBILITY. 

§  469.  Estates  or  interests  bound  by  estoppel.  Scope  of 
discussion.  The  doctrine  upon  which  rest  statutory  provi- 
sions relating  to  the  posting  or  filing  of  a  notice  of  non- 
responsibility  by  the  owner  to  protect  his  property  from  liens 
for  labor  material  for  the  construction  of  a  building  thereon 
is  that  of  estoppel.1 

Additional  matter  to  foot-note  2.2 

Additional  matter  to  foot-note  3.3 

§  470.     Same.    The  general  principles  of  estoppel,  in  pais. 
Additional  matter  to  foot-note  5.4 

§  471.    Same.    Independently  of  statute. 

Additional  matter  to  foot-note  6.5 


1  California.     John    R.    Gentle    &    Co.    v.    Brltton,    158    Cal.    328,    332, 
111  Pac.  Rep.  9;  s.  c.   (Cal.  App.),  8  Cal.  App.  Dec.  350.     Some  of  the 
language  of  this  opinion  relative  to  an  "equitable  lien"  being  created 
is  unfortunate. 

2  See  Agency,  §§  572  et  seq.,  this  Supplement,  post. 

3  See  §  470,  this  Supplement,  post. 

4  California.     John    R.    Gentle    &    Co.    v.    Britton,    158    Cal.    328,    332, 
111  Pac.  Rep.  9;  s.  c.  (Cal.  App.),  8  Cal.  App.  Dec.  350. 

Principles  of  equitable  estoppel  i 

Kansas.     See  Dent  v.  Smith,  76  Kan.  381,  92  Pac.  Rep.  307. 

Oklahoma.  By  silence:  See  Bragdon  v.  McShea  (Okl.),  107  Pac. 
Rep.  916. 

Oregon.  See  State  v.  Portland  G.  E.  Co.,  52  Oreg.  502,  95  Pac.  Rep. 
722. 

Washington.  See  Caruthers  v.  Whitney,  56  Wash.  327,  105  Pac. 
Rep.  831. 

5  Husband   and  wife   as   agents   of  each   other: 

Federal.  See  Healey  I.  M.  Co.  v.  Green  (C.  C.,  N.  C.),  181  Fed.  Rep. 
890. 

Kansas.  See  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac. 
Rep.  179,  181;  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac. 
Rep.  80,  81. 

Kansas.  Repairs  by  co-tenant:  Leaving  out  of  account  necessary 
repairs  and  improvements  essential  to  the  preservation  of  the  prop- 


§§471-475          MECHANICS'    LIENS—  SUPPLEMENT. 

Additional  matter  to  foot-note  7.6 


$  472.  Same.  General  rule  as  to  when  notice  of  non-re- 
sponsibility must  be  given.  But  a  notice  of  non-responsi- 
bility obviously  can  not  be  given  prohibiting  what  has  al- 
ready been  accomplished.7 

§  473.  Same.  Notice  of  non-responsibility.  Statutory 
provision.8 

§  474.  Same.  Purpose  of  provision  as  to  notice  of  non- 
responsibility.8 

§  475.  Same.  Notice  or  knowledge  of  improvement. 
Under  the  statute  requiring  the  owner  to  give  notice  of 
non-responsibility,  if  the  construction  is  already  completed, 
it  is  obvious  that  knowledge  subsequently  acquired  would 
be  of  no  avail  to  the  owner,  and  no  such  notice  would  be 
required.0  AVhere  the  lessee  is  the  mere  agent  of  the  owner 


erty.  one  tenant  In  common  can  not  by  his  own  contract  alone  subject 
the  Interest  of  his  co-tenants  to  a  mechanics'  Hen:  Robert  Garrett 
L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac.  Rep.  179,  181  (case  of  husband 
as  statutory  agent  of  wife).  See  Mellor  v.  Valentine,  3  Colo.  260; 
Seel  v.  Nell,  37  Colo.  198,  86  Pac.  Rep.  334;  Conrad  v.  Starr,  50  Iowa 
470,  481:  Woodburn  v.  Gifford,  77  111.  285;  Leslie  v.  Leonard,  10  Pa. 
Super.  Ct.  548. 

Change  of  account  from  name  of  agent  to  principal:  See  Chicago 
L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac.  Rep.  80,  81. 

Oklahoma.     See  Bloch  v.  Pearson,  19  Okl.  422,  91  Pac.  Rep.  714. 

Utah.  A  fortiori,  no  lien  when  the  owner  has  a  mere  expectation 
that  the  building  will  be  constructed:  Belknap  v.  Condon,  34  Utah 
213,  97  Pac.  Rep.  Ill,  114.  See  Sheeny  v.  Fulton,  38  Neb.  691,  57  N.  W. 
Rep.  395,  41  Am.  St.  Rep.  767. 

\\  :i»liini:iiiii.  Even  where  the  le»«ee  direct*  the  claimant  to  proceed 
with  the  repairs  ordered  by  the  lessor,  Interest  of  lessee  not  bound: 
Housekeeper  v.  Livingstone,  48  Wash.  209,  93  Pac.  Rep.  217,  219. 

e  Kamia*.  See  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109 
Pac.  Rep.  179,  180,  181. 

7  California.  John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  111  Pac. 
Rep.  9;  s.  c.  (Cal.  App.),  8  Cal.  App.  Dec.  350. 

s  California.  See  8  1192,  Code  Civ.  Proc.,  as  amended  May  1,  1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.).  Verification  and  recording  of 
notice,  among  other  things,  now  required. 

9  California.  John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  111  Pac. 
Rep.  9;  s.  c.  (Cal.  App.),  8  Cal.  App.  Dec.  350. 


ESTATES  SUBJECT—  BY  ESTOPPEL. 


g  475 


in  the  erection  and  construction  of  the  building,  such  owner 
is  not  entitled  to  give  the  notice  of  non-responsibility  pro- 
vided in  the  statute.10 

The  general  rule  that  knowledge  of  the  agent  is  knowledge 
of  the  principal,  within  the  scope  of  the  agency,  applies  to 
knowledge  of  the  construction  of  a  building;  thus  when  an 
agent  having  charge  of  property  has  notice  during  the 
progress  of  the  work  of  construction  that  the  vendee  in 
possession  is  making  repairs,  this  is  notice  to  the  owner.11 
The  knowledge  upon  the  owner's  part  which  is  sufficient  to 
place  him  in  default  for  failure  to  give  the  notice  of  non- 
responsibility  required  by  the  statute  need  not  be  absolute  ; 
it  is  enough  if  it  would  put  a  prudent  man  upon  inquiry.12 

Additional  matter  to  foot-note  15.  13 

Additional  matter  to  foot-note  16.  14 

Additional  matter  to  foot-note  17.  15 


10  California.     Western    L.    &   M.    Co.    v.    Merchants'    A.    Co.,    13    Cal. 
App.  >4,  108  Pac.  Rep.  891,  894   (hearing  in  Supreme  Court  denied).     In 
this  case  it  was  also  said  that  if  the  owner  has  knowledge  of  the  in- 
tention to  build,  he  must  act  upon  that  knowledge,  and  within  three 
days  post  the  notice;  if  he  has  no  knowledge  of  the  Intention,  he  must 
move  with  like  promptness  upon  obtaining  knowledge  of  the  construc- 
tion.    But  see  §  484,  Treatise  and  this  Supplement,  post. 

11  California.     Pacific  L.  Co.  v.  Wilson,  6  Cal.  App.   561,  562,   92  Pac. 
Rep.  654. 

California.  Whether  necessary  to  give  notice  if  knowledge  is  ob- 
tained after  completion  not  determined:  Pacific  L.  Co.  v.  Wilson, 
6  Cal.  App.  561,  562,  92  Pac.  Rep.  654. 

If  the  owner  received  knowledge  from  any  source  as  to  the  con- 
struction, constructive  notice  received  by  him  by  reason  of  knowledge 
of  his  agent  of  the  construction  can  not  arise;  and  the  knowledge  of 
the  agent  would  be  important  only  when  the  owner  does  not  receive 
such  notice  as  would  put  a  prudent  man  upon  inquiry:  John  R. 
Gentle  &  Co.  v.  Britton,  158  Cal.  328,  332,  111  Pac.  Rep.  9. 

12  California.     John    R.    Gentle    &    Co.    v.    Britton,    158    Cal.    328,    332, 
111  Pac.  Rep.  9;  s.  c.  (Cal.  App.),  8  Cal.  App.  Dec.  350;  and  see  Evans 
v.  Judson,   120  Cal.  282,  284. 

is  California.  See  Pacific  L.  Co.  v.  Wilson,  6  Cal.  App.  561,  562,  92 
Pac.  Rep.  654. 

Colorado.     See  Hall  v.  Cudahy,  46  Colo.  324,  104  Pac.  Rep.  415. 

Nevada.  Tonopah  L.  Co.  v.  Nevada  A.  Co.,  30  Nev.  445,  97  Pac.  Rep. 
636,  639. 

14  Utah.  Compare  Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Rep.  Ill, 
113,  114. 

is  Washington.  See  Wetzler  v.  Nichols,  53  Wash.  285,  101  Pac.  Rep. 
867,  868. 

As  to  Implied  notice:  See  Hawkes  v.  Hoffman,  56  Wash.  120,  105  Pac. 
Rep.  156,  158. 


§§  476-481          MECHANICS'    LIENS— SUPPLEMENT. 

§  476.     Same.    Notice  to  corporation  as  owner. 
Additional  matter  to  foot-note  18. 16 

§  477.  Same.  Lessee  in  possession  and  making  improve- 
ments. 

Additional  matter  to  foot-note  20. 17 
Additional  matter  to  foot-note  21. 18 

§  478.  Same.  Vendee  being  in  possession.  The  interest 
of  the  vendor  of  real  property  may  be  bound  for  improve- 
ments made  by  a  vendee  in  possession,  of  which  the  vendor 
has  knowledge,  if  the  latter  does  not  give  the  notice  of  non- 
responsibility,  required  by  the  statute.19 

Additional  matter  to  foot-note  22.20 

§  479.  Same.  When  notice  not  required.  The  notice  of 
non-responsibility  is  not  required  when  the  knowledge  comes 
to  the  owner  after  the  completion  of  the  construction.21 

Additional  matter  to  foot-note  25. 22 

§  480.  Same.  When  notice  not  required  in  case  of  mines 
and  mining  claims.23 

§  481.  Same.  Notice  not  required  in  case  of  grading  and 
other  work  in  incorporated  cities.23 

10  New  Mexico.  Likewise,  notice  to  general  manager  of  corpora- 
tion, is  notice  to  the  corporation:  Steams-Roger  Mfg.  Co.  v.  Aztec 
Q.  M.  &  M.  Co.,  14  N.  M.  300,  93  Pac.  Rep.  706,  713. 

IT  Washington.  See  Wetzler  v.  Nichols,  53  Wash.  285,  101  Pac.  Rep. 
876,  878. 

is  California.     See  §  475,   this  Supplement,  ante. 

19  California.      Pacific    L.    Co.    v.    Wilson,    6    Cal.    App.    561,    92    Pac. 
Rep.   654. 

20  Colorado.    See  Hall  v.  Cudahy,  46  Colo.  324,  104  Pac.  Rep.  415. 
Utah.    Compare  Belknap  v.  Condon, '34  Utah  213,  97  Pac.  Rep.  Ill,  114. 

21  California.     John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  111  Pac. 
Rep.  9;  s.  c.,  8  Cal.  App.  Dec.  350. 

22  California.    Unborn  contingent  remainder-man  giving  notice:     See 
Los  Angeles  County  v.  Winans,  13  Cal.  App.  234,  109  Pac.  Rep.  640,  649, 
109  Pac.  Rep.  650. 

23  California.     But   see    §1192   Code   Civ.   Proc.,  as  amended   May   1, 
1911   (Stats,  and  Amdts.  1911,  pp.  1313,  et  seq.). 


171  ESTATES    SUBJECT — BY    ESTOPPEL.  85482-484 

§  482.     Same.    Notice  not  required  in  case  of  prior  liens. 
Additional  matter  to  foot-note  41. 24 
Additional  matter  to  foot-note  42.25 

§  483.     Same.    Effect  of  knowledge  of  claimant  of  lack;  of 
authority  of  person  making  improvement. 
Additional  matter  to  foot-note  43. 26 

§  484.  Same.  Notice,  when  to  be  posted.  The  law  does 
not  say  that  upon  the  posting  of  the  notice  the  owner  will 
not  be  liable  for  any  labor  performed  or  material  furnished 
thereafter,  but  that  if  he  fails  to  post  such  notice  within  the 
statutory  time  after  knowledge  that  the  improvement  was 
being  made,  it  shall  be  held  to  have  been  constructed  at  his 
instance.  There  is  no  limitation  in  respect  to  the  stage  of 
the  work  at  the  time  at  which  the  notice  must  be  posted.  The 
statutory  provision  would  be  complied  with  by  posting  on 
the  same  day  the  improvements  are  begun,  if  this  is  within 
three  days  after  knowledge  was  obtained,  either  in  the  con- 
struction or  intended  construction.  And,  if  done  within 
three  days  after  knowledge  received,  the  notice  will  be 
timely  upon  any  day  when  the  work  on  the  improvement 
was  in  progress.27 

Holidays.  Conceding  that  continuance  of  holidays  de- 
clared by  the  governor  consisting  of  part  of  the  time  work 
was  being  done  postponed  the  owner's  right  to  avail  him- 
self of  the  notice  of  non-responsibility  prescribed  by  the 
statute,  the  completion  of  the  work  during  the  holidays 
would  not  render  such  notice  nugatory  when  the  holidays  had 


24  New  Mexico.     Steams-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14 
N.  M.  300,  93  Pac.  Rep.  706,  712,  713. 

25  New  Mexico.     Stearns-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14 
N.  M.    300,    93   Pac.   Rep.    706,   712,   713. 

26  Washington.     Against  the  authority  and  consent  of  owner,  a  lien 
for    grading    can    not    be    acquired;    and    the    owner    was    held    not 
estopped,  although  three-quarters  of  grading  had  been  done:     Erick- 
son  v.  Hochbrune,  47  Wash.  33,   91  Pac.  Rep.   485    (statutory  notice  of 
non-responsibility  not  involved). 

27  California.     John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  332,  111 
Pac.  Rep.  9  (on  hearing  in  Supreme  Court,  after  decision  in  the  Court 
of  Appeals).     See  note  23,  this  chapter,  ante. 


§§  484,  485         MECHANICS1    LIENS— SUPPLEMENT. 

ended,  even  if  the  work  were  commenced  after  a  series  of 
consecutive  holidays  were  declared;  and  the  owner  must 
post  such  notice  upon  the  first  secular  day  after  his  dis- 
covery of  the  activities  of  the  laborers  who  subsequently 
become  lien  claimants.28 

Additional  matter  to  foot-note  44.29 

Additional  matter  to  foot-note  45.30 

Additional  matter  to  foot-note  46.31 

§  485.     Same.    Notice  how  posted.     Conspicuous  place. 
Additional  matter  to  foot-note  48.32 


28  California.     John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  330.  Ill 
Pac.  Rep.  9;  a.  c.,  8  Cal.  App.  Dec.  350.     The  question  of  the  effect  of 
the  holidays  held  not  to  arise,  owing  to  failure  to  post  notice  of  non- 
responsibility  on  the  first  day  succeeding  the  holidays.     Id.,  p.  331. 

29  California.     See  John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  111 
Pac.  Rep.  9;  s.  c.,  8  Cal.  App.  Dec.  350. 

See  §i  472,  475  and  479,  this  Supplement,  ante. 

so  California.  John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  332,  111 
Pac.  Rep.  9  (on  hearing  in  Supreme  Court  after  decision  in  Court 
of  App.). 

But  see,  contra  s  Western  L.  &  M.  Co.  v.  Merchants'  A.  Co.,  13  Cal. 
App.  4,  108  Pac.  Rep.  891,  894. 

si  California.  John  R.  Gentle  &  Co.  v.  Britton,  158  Cal.  328,  332,  111 
Pac.  Rep.  9  (on  rehearing  in  Supreme  Court). 

"Day  appointed  by  law"— holiday:  See  John  R.  Gentle  &  Co.  v. 
Britton,  158  Cal.  328,  111  Pac.  Rep.  9;  s.  c.,  8  Cal.  App.  Dec.  350. 

See  i  475,  this  Supplement,  ante. 

82  California.  See  §1192,  Code  Civ.  Proc.,  as  amended  May  1,  1911 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.). 

\\  :isiiini;iiiii.  Knowledge  by  the  one  pouting  the  notice  that  it  was 
immediately  torn  down  renders  notice  ineffectual:  Shaw  v.  Spencer, 
57  Wash.  587,  107  Pac.  Rep.  383. 


173  PRIORITIES  OF  LIENS.  §  §  486-492 


CHAPTER  XXV.. 

LIMITATIONS    ON    LIENS    (CONTINUED).      PRIORITIES. 

§  486.     Scope  of  chapter. 

§  487.  Priorities  between  mechanics'  liens  and  other 
estates  or  interests,  or  other  classes  of  liens. 

§  488.     Same.     Statutory  statement  of  rule.1 

§  489.     Same.    General  analysis  of  provision. 
Additional  matter  to  foot-note  12.2 

§  490.    Same.     Grants  and  conveyances. 
Additional  matter  to  foot-note  15. 3 

§  491.     Same.    Doctrine  of  relation. 

Additional  matter  to  foot-note  18. 4 
Additional  matter  to  foot-note  20.5 

§  492.  Same.  Lien  for  materials.  Where  the  owner  con- 
tracts directly  with  the  claimant  through  himself  or  com- 

1  California.  §  1186  Code  Civ.  Proc.  was  not  amended  by  Act  of  May 
1,  1911  (Stats.  &  Amdts.  1911,  pp.  1313  et  seq'.). 

2  California.  Burnett  v.   Glas,    154   Cal.    249,    258,   97   Pac.   Rep.    423; 
s.   c.,  sub   nom.  Barrett-Hicks   Co.   v.   Glas,    109   Cal.   App.    491,    99   Pac. 
Rep.    856. 

3  California.  Holt    Mfg.    Co.    V.    Collins,    154    Cal.    265,    270,    97    Pac. 
Rep.  516. 

Oregon.  But  see  Coffey  v.  Smith,  52  Oreg-.  538,  97  Pac.  Rep.  1079; 
s.  c.,  52  Oreg-.  545,  97  Pac.  Rep.  1081;  s.  c.,  52  Oreg.  546,  97  Pac.  Rep. 
1082. 

4  Federal.     See  Bankers   T.   Co.   of  New  York   v.   T.  A.   Gillespie   Co. 
(C.  C.  A.),  181  Fed.  Rep.  448. 

Kansas.  See  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan,  428,  92 
Pac.  Rep.  833. 

Oregon.  See  Grants  Pass  B.  &  T.  Co.  v.  Enterprise  M.  Co.  (Oreg.), 
113  Pac.  Rep.  859. 

5  Kansas.      Fossett   v.    Rock    Island   L.    &    Mfg.    Co.,    76    Kan.    428,    92 
Pac.  Rep.  833,  835. 


§§  492-495  MECHANICS'    LIENS— SUPPLEMENT. 

mon  law  agent,  the  priority  of  the  lien  is  to  be  determined  by 
the  date  when  the  claimant  commenced  to  furnish  the  ma- 
terials, and  includes  all  materials  that  he  may  thereafter 
furnish  for  the  building.0 

Additional  matter  to  foot-note  25.7 

§  493.    Same.     Contractors     and     subcontractors.     Void 
contracts.    Homestead. 

Additional  matter  to  foot-note  28.8 
Additional  matter  to  foot-note  29.9 

§  494.      Same.    Parts  of  day. 

§  495.     Same.    General  rule. 
Additional  matter  to  foot-note  31. 10 
Additional  matter  to  foot-note  32. n 
Additional  matter  to  foot-note  33. 12 
Additional  matter  to  foot-note  34. 13 


o  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266. 
270,  96  Pac.  Rep.  788. 

T  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
270,  96  Pac.  Rep.  788. 

Kansas.  See  Fossett  v.  Rock  Island  Land  &  Mfg.  Co.,  76  Kan.  428,  92 
Pac.  Rep.  833,  835. 

Oregon.  Grants  Pass  B.  &  T.  Co.  v.  Enterprise  M.  Co.  (Oregr.),  113 
Pac.  Rep.  859. 

s  California.  Burnett  v.  Glas,  154  Cal.  249,  258,  97  Pac.  Rep.  423; 
s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac.  Rep. 
856. 

Statutory  original  contract  abolished  by  Stats.  &  Amdts.  1911,  pp. 
1313  et  seq. 

9  California.    Compare  Blood  v.  Munn,  155  Cal.  228,  100  Pac.  Rep.  694. 

10  Alaska.     See  Copper  River  L.  Co.  v.  Clark,  3  Alaska  635. 
California.    See  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep. 

760,  766;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  154  Cal.  249,  258,  97  Pac.  Rep.  423.  Compare  Farnham  v.  Cali- 
fornia S.  D.  &  T.  Co.,  8  Cal.  App.  266,  269,  96  Pac.  Rep.  788;  and  Blood 
v.  Munn,  155  Cal.  228,  100  Pac.  Rep.  694.  - 

Oregon.  Grants  Pass  B.  &  T.  Co.  v.  Enterprise  M.  Co.  (Oreg.),  113 
Pac.  Rep.  859. 

Washington.    Compare  Bigg's  v.  Hoffman  (Wash.),  Ill  Pac.  Rep.  576. 

11  California.     Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
269,  270,  96  Pac.  Rep.  788. 

12  Washington.     Compare   Palmer  v.    Abrahams,    55   Wash.    352,    104 
Pac.  Rep.  648. 

13  California.      Holt   Mfg.    Co.   v.    Collins,    154    Cal.    265,    270,    97   Pac. 
Rep.  516. 


175  PRIORITIES  OF  LIENS.  §§  495-498a 

Additional  matter  to  foot-note  35. 14 
Additional  matter  to  foot-note  36. 15 
Additional  matter  to  foot-note  37.16 

§  495a.  Same.  Deed  of  trust.  Work,  general  design. 
The  fact  that  claimant  has  been  paid  for  work  done  prior 
to  the  execution  and  record  of  a  deed  of  trust  does  not  give 
priority  to  the  deed  of  trust  over  the  lien,  for  the  work  or 
material  furnished  after  the  record  of  the  deed  of  trust, 
when  the  lien  as  whole  relates  back  to  the  commencement 
of  doing  the  work  or  furnishing  the  materials,  and  the  con- 
struction or  alteration  is  an  entire  undertaking,  carried  on 
in  furtherance  of  one  general  design,  although  done  in  a 
somewhat  fragmentary  manner.17 

§  496.     Same.    Mortgage  for  purchase  price. 

§  497.     Same.    Mortgage  for  future  advances. 

§498.     Same.     What  constitutes  further  "advances." 

§  498a.  Same.  Prior  and  subsequent  mortgages.  Where 
all  the  liens  are  prior  to  a  mortgage,  or  all  are  subsequent 
thereto,  the  case  is  different  from  that  where  part  are  prior 
and  part  subsequent.  In  the  latter  instance  there  must  be  a 
judgment  and  sale  in  such  terms  as  to  preserve  the  respect- 
ive rights  of  the  parties  having  liens  upon  the  property; 
and  the  proceeds  will  be  applied,  first  to  the  payment  of  the 

14  California.  Compare  Burnett  v.  Glas,  154  Cal.  249,  258,  97  Pac. 
Rep.  423.  See  s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App. 
491,  99  Pac.  Rep.  856. 

is  Arizona.  Compare  Bank  of  Arizona  v.  Thos.  Haverly  Co.  (Ariz.), 
115  Pac.  Rep.  73,  75. 

California.  See  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep. 
760,  766;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  and  compare  s.  c., 
sub  nom.  Burnett  v.  Glas,  154  Cal.  249,  258,  97  Pac.  Rep.  423. 

New  Mexico.  Steams-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14 
N.  M.  300,  93  Pac.  Rep.  706,  712,  713. 

16  New  Mexico.  Stearns-Roger  Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14 
N.  M.  300,  93  Pac.  Rep.  706,  712,  713. 

IT  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266,  270. 


§§  498a-503      MECHANICS'  LIENS — SUPPLEMENT.  175 

prior  liens,  then  to  the  payment  of  the  mortgage,  and  then 
to  the  inferior  liens.18 

Debt  not  due.  As  a  matter  of  necessity  the  debtor  and 
mortgage  creditor  must  under  such  circumstances  be  deemed 
to  have  acted  subject  to  the  contingency  that  such  a  disposi- 
tion might  become  necessary,  and  the  maturity  of  the  debt 
brought  forward,  a  rebate  of  interest  being  allowed,  when 
proper.19  But  when  such  necessity  ceases  to  exist,  for 
instance,  when  either  the  prior  or  subsequent  liens  are  paid 
off,  thus  leaving  only  one  class  of  liens  surviving,  the  matur- 
ity of  the  mortgage  debt  can  not  be  anticipated.20 

§  499.     Same.    Reformation  and  alteration  of  instruments. 

§  500.  Same.  When  lien  claimants  may  attack  prior  en- 
cumbrances. 

§  501.     Same.    Garnishment  by  creditor. 

§  502.  Same.  Lien  on  two  or  more  buildings.  Statutory 
provision. 

§  503.  Same.  When  provision  as  to  two  or  more  build- 
ings applicable. 

Additional  matter  to  foot-note  54. 21 


is  California.  Burnett  v.  Glas.  154  Cal  249,  258,  97  Pac.  Rep.  423; 
Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep.  760,  766;  s.  c., 
9  Cal.  App.  491,  99  Pac.  Rep.  856. 

Illinois.  See  Croskey  v.  Northwestern  Mfg.  Co.,  48  111.  481;  North 
Presbyterian  Church  v.  Jevne,  32  111.  214,  83  Am.  Dec.  261;  Grundels 
v.  Hartwell,  90  111.  324. 

North  Dakota.  See  Craig  v.  Herzman,  9  No.  Dak.  140,  81  N.  W. 
Rep.  288. 

Ohio.     See  Choteau   v.   Thompson,    2   Oh.   St.   114. 

Texa».  Kahler  v.  Carruthers,  18  Tex.  Civ.  App.  216,  223,  45  S.  W. 
Rep.  160. 

19  California.      Burnett  v.   Glas,    154   Cal.    249,    258,   97   Pac.   Rep.    423. 
See  s.  c.,  sub    nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.  856,  111  Pac.  Rep.  766. 

20  California.      Barrett-Hicks  Co.  v.   Glas   (Cal.  App.),   Ill   Pac.   Rep. 
760,  766;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

21  Kantian.     Smith  v.  Chicago  L.  &  C.  Co.   (Kan.),   114  Pac.  Rep.   372. 


177  PRIORITIES  OF  LIENS.  ss  504-507 

§  504.     Priority  inter  sese.    Statutory  provision. 
Additional  matter  to  foot-note  55.22 

§  505.     Same.     Nature  of  provision.23 

§  506.  Same.  Effect  of  constitution  on  statutory  pro- 
vision. 

Additional  matter  to  foot-note  64.24 

§  507.  Same.  Insufficient  proceeds.  Prorating.  But 
under  a  void  statutory  original  contract,  that  is,  in  case  of 
a  direct  lien,  no  prorating  or  apportionment  is  necessary,  so 
far  as  the  amount  that  would  otherwise  be  due  under  the 
original  contract  is  concerned.25 

Additional  matter  to  foot-note  67. 26 


22  California.     §  1194  Code  Civ.  Proc.,  was  repealed  by  Act  of  May  1, 
1911    (Stats.   &  Amdts.   1911,  pp.   1313   et  seq.). 

Marshalling:  assets: 

Oregon.  See  Washburn  v.  Inter-mountain  M.  Co.  (Oreg.),  109  Pac. 
Rep.  382,  386  (where  mine  and  mill  constitute  one  property  to  which 
lien  attaches,  doctrine  of  marshalling  of  assets  can  not  be  invoked;  it 
applies  only  where  there  are  two  or  more  funds  or  properties). 

Wyoming.     See   Stowe  v.  Powers    (Wyo.),   116   Pac.   Rep.   576. 

23  California.     See  §  1194  Code  Civ.  Proc.,  as  amended  May   1,   1911 
(Stats.   &  Amdts.   1911,  pp.   1313  et  seq.). 

24  California.     Barrett-Hicks   Co.   v.  Glas    (Cal.   App.),   Ill   Pac.   Rep. 
760,  765;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423.     See  Hartwell  v.  Ganahl  L.  Co., 
8  Cal.   App.   733,  737,   97   Pac.   Rep.   901. 

See  preceding  note. 

25  California.     Coghlan  v.  Quartararo   (Cal.  App.),  115  Pac.  Rep.  664, 
666. 

The  Statutory  Original  Contract  was  abolished  by  amendment  of 
May  1,  1911,  to  §  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts.  1911,  pp.  1313 
et  seq.). 

See  §§  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

26  Marshalling  assets:     See    §504,    this   Supplement,   ante,   notes. 


Bloom's  Sup. — 12 


§§  508-512          MECHANICS'    LIENS — SUPPLEMENT.  ]Jg 


CHAPTER  XXVI. 

OWNER,    EMPLOYER,    OR    PERSON   CAUSING   IMPROVEMENT 
TO  BE  MADE. 

§  508.     Owner  and  employer,  or  purchaser.     Distinction. 
Additional  matter  to  foot-note  I.1 
Additional  matter  to  foot-note  4.2 

§  509.     Owner  and  reputed  owner.3 

§  510.  General  rights  of  owner  and  employer.  Scope  of 
discussion. 

§  511.  Same.  Rights  against  contractor.  Statutory  pro- 
vision. 

Additional  matter  to  foot-note  9.4 

§  512.  Same.  General  rule  as  to  non-payment  of  in- 
stalments. 

1  Various   definition*   of  "owner": 

California.  See  Hughes  Mfg.  &  L.  Co.  v.  Wllcox  (Cal.  App.),  108 
Pac.  Rep.  871  (ownership  of  stock);  Los  Angeles  Co.  v.  Winans  (Cal. 
App.),  109  Pac.  Rep.  641  (under  foreclosure  of  street  assessment). 

Kansas.  See  Steele  v.  Dye,  81  Kan.  286,  105  Pac.  Rep.  700  (relating 
to  taxation).  See,  also,  Hathaway  v.  Davis,  32  Kan.  693,  5  Pac. 
Rep.  29. 

Oklahoma.     See  Jarrell   v.   Block,   19  Okl.   467,  92  Pac.   Rep.   167. 

"Employer  of  Labor":  See  J.  F.  Parkinson  Co.  v.  Building  Trades 
Council,  154  Cal.  581,  98  Pac.  Rep.  1027. 

Public  corporation  an  owner:  See  f  192,  this  Supplement,  ante,  and 
notes. 

2  Idaho.     See  contra,  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co., 
14  Idaho  5,  93  Pac.  Rep.  789,  792,  92  Pac.  Rep.  980. 

KniiMdN.  See,  contra,  Badger  L.  Co.,  v.  Malone,  8  Kan.  App.  692, 
54  Pac.  Rep.  692. 

3  See  |508,  this  Supplement,  ante,  note. 

«  California.     This  provision  remains  under  the  amendment  of  1911. 

Kansas.  Under  similar  provision,  owner  may  contest  the  extent 
of  the  lien  of  subcontractor,  even  though  contractor  is  satisfied  with 
amount  of  his  claim:  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103, 
Pac.  Rep.  1003,  1004. 

Oklahoma.  This  Is  upon  the  principle  of  subrogation:  Albertl  v. 
Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547,  548. 


179  OWNER — EMPLOYER.  88  513-515 

§  513.     Same.    Right  to  cancel  contract. 
Additional  matter  to  foot-note  II.5 

§  514.  Same.  Right  of  owner  to  retain  fund.  The  owner 
has  the  right  to  retain  the  fund  upon  service  of  notice  to 
withhold  provided  by  the  statute.6 

Additional  matter  to  foot-note  12.7 

• 

§  515.     Same.     Offsets  and  counterclaims.     Generally. 

Additional  matter  to  foot-note  19.8 


5  Washington.  Mutual  rescission:  See  Evans  v.  Oregon  &  W.  R. 
Co.,  58  Wash.  429,  108  Pac.  Rep.  1095. 

e  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  462,  94  Pac.  Rep.  775. 

7  California.     Right    of   owner   to   retain    fund:     See    Klokke    v.    Ra- 
phael,  8  Cal.  App.  1,  5,  96  Pac.  Rep.   392. 

Kansas.  Right  to  retain  fund:  See  Fossett  v.  Rock  Island  L.  & 
Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833,  836;  Wichita  S.  &  D.  Co.  v. 
Weil,  80  Kan.  606,  103  Pac.  Rep.  1003,  1004. 

Oklahoma.  See  Jones  v.  Balsley  (Okl.),  Ill  Pac.  Rep.  942;  s.  c., 
25  Okl.  344,  106  Pac.  Rep.  830. 

8  Colorado.     See  Gille'tt  v.  Young,  45  Colo.  562,  101  Pac.  Rep.  766,  768. 
Idaho.     For   defective   workmanship    in   an   action    to    foreclose   lien 

of  original  contractor:  Steltz  v.  Armory  Co.,  15  Idaho,  551,  99  Pac. 
Rep.  98,  101. 

Kansas.  Owner  setting  oft  damages  against  contractor:  See 
Badger  L.  Co.  v.  Martin  (Kan.),  112  Pac.  Rep.  104,  105;  McCullough 
v.  S.  J.  Hayde  C.  Co.,  82  Kan.  734,  109  Pac.  Rep.  176. 

In  Fossett  v.  "Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep. 
833,  838,  839  (Johnston,  C.  J.,  dissenting),  it  is  said: 

"In  Morehouse  v.  Moulding,  74  111.  322,  where  the  statute  at  the 
time  provided  that  in  no  case  should  the  owner  be  compelled  to  pay 
a  greater  sum  than  the  price  stipulated  in  the  original  contract,  it 
was  held  that  damages  for  the  failure  to  fulfill  a  contract  should  be 
deducted  from  the  contract  price,  and  the  balance  prorated  among 
the  subcontractors  [p.  839].  And  in  Biggs  v.  Clapp,  74  111.  335,  the 
same  clause  of  the  Illinois  statute  is  construed  in  a  case  where  the 
contractor  abandoned  the  contract  and  the  owner  was  obliged  to 
complete  it  himself.  It  was  held  that,  where  the  owner  was  obliged  to 
pay  more  than  the  contract  price  to  complete  the  building,  the  sub- 
contractors were  not  entitled  to  any  lien.  This  court  in  Hotel  Co.  v. 
Hardware  Co.,  56  Kan.  448,  43  Pac.  Rep.  769,  has.  laid  down  the  same 
rule.  It  seems  difficult  to  give  a  reason  for  allowing  the  owner 
credit  for  additional  sums  paid  to  carry  out  an  abandoned  contract, 
and  thus  reduce  the  fund  upon  which  the  subcontractor  may  rely, 
which  would  not  apply  with  equal  force  to  the  allowance  of  damages 
occasioned  by  the  fault  of  the  contractor  in  other  respects.  The 
amount  he  contracted  .to  pay  was  a  certain  sum,  conditioned  upon 
full  performance  of  the  contract  according  to  its  terms.  Wright  v. 
Pohls,  83  Wis.  560,  53  N.  W.  Rep.  848. 

"Any  damages  resulting  from  the  fault  of  either  party,  which  couM 


R  515 


MECHANICS'    LIENS—  SUPPLEMENT. 


be  said  to  have  been  in  the  contemplation  of  the  parties  at  the  time 
the  contract  was  made,  should  properly  figure  in  the  amount  the 
owner  contracted  to  pay.  If  such  damages  resulted  in  his  favor,  the 
amount  he  contracted  to  pay  would  be  so  much  less  than  the  amount 
named.  Stating  it  in  different  language,  he  contracted  to  pay  a  cer- 
tain sum  conditioned  upon  the  fulfillment  of  the  contract,  and,  if  any 
damages  were  caused  .by  the  contractor,  he  agreed  to  pay  as  much 
less  as  the  damages  amounted  to. 

••MI,-  owner  may  recoup  diiniHicen  mcnlnHt  the  contractor,  arising  out 
of  the  failure  of  the  latter  to  perform  faithfully  the  contract,  and 
without  regard  to  the  absence  in  the  contract  of  specific  terms  pro- 
viding for  damages.  He  may  show  as  against  the  contractor  that 
the  building  was  not  completed,  or  not  completed  in  time,  or  that 
defective  materials  were  used.  »Why  should  he  not  be  permitted  to 
show  these  counterclaims  when  it  is  sought  to  recover  against  him 
by  one  who  has  no  contractual  relations  with  him,  and  who  seeks  to 
recover  a  debt  from  the  contractor?  The  only  answer  to  this  is  that 
the  statute  fixes  the  extent  of  his  liability  to  the  subcontractor  at  the 
amount  which  he  agreed  to  pay  the  contractor,  regardless  of  whether 
the  contract  is  fulfilled  or  not.  Giving  an  offset  for  the  cost  of 
completing  the  building  is,  however,  when  analyzed,  practically  an 
allowance  of  damages  for  failure  to  complete.  The  measure  of  the 
damages  is  the  ascertained  cost  of  completion,  but  the  principle  is  the 
same  as  though  the  contract  provided  for  a  certain  sum  as  liquidated 
damages  for  each  day's  delay,  and  numerous  decisions  authorize  the 
allowance  of  damages  liquidated  in  this  manner  by  the  terms  of  the 
contract,  even  in  suits  to  enforce  a  subcontractor's  Hen. 

"With  respect  to  this  question  also  it  may  be  observed  that  the 
authorities  are  not  so  numerous  as  might  be  expected  upon  a  question 
so  likely  to  arise  in  the  adjustment  of  building  liens,  nor  are  many 
of  them  clear  and  decisive.  Some  of  the  text  writers  say  that  dam- 
ages caused  by  the  contractor  may  be  offset  against  the  lien  of  a 
subcontractor,  but  many  of  the  cases  referred  to  in  the  notes  do  not 
bear  out  the  text.  Thus  Phillips  on  Mechanics'  Liens,  cites  Mlllsap 
v.  Ball,  30  Neb.  728,  46  N.  W.  Rep.  1125,  relied  upon  by  plaintiff  In 
error.  The  case,  however.  Is  not  an  authority.  There  is  in  the  opinion 
a  statement  that,  damages  caused  by  a  contractor  may  be  offset 
against  the  lien  of  a  subcontractor,  but  it  appears  on  examination  to 
be  mere  dictum.  Some  of  the  other  cases  cited  by  plaintiff  in  error 
were  suits  by  the  original  contractor,  and  others  are  based  upon 
statutes  which  expressly  declare  that  the  Hen  of  the  subcontractor  is 
limited  to  'what  may  be  due  the  contractor,'  leaving  little  room  for 
doubt  as  to  the  proper  construction. 

••in  Home  «<nte«.  notably  Michigan,  the  statute  expressly  provides 
that  the  owner  may  recoup  damages  sustained  through  the  failure  or 
omission  of  the  contractor:  Smalley  v.  Gearing,  121  Mich.  190,  79 
N.  W.  Rep.  1114.  80  N.  W.  Rep.  797. 

"Damages  caused  by  the  fault  of  the  contractor  have  been  allowed 
against  subcontractors  in  McBean  v.  Klnnear,  23  Ont.  313:  Julia  v. 
Ristow  Poths  Mfg.  Co.,  54  111.  App.  460;  Cheney  v.  Troy  Hospital 
Assoc.,  65  N.  Y.  282. 

"'The  anthorltle*  neeni  to  be  nnanlmou*  that,  where  the  extent  of  the 
owner's  obligation  to  pay  is  limited  to  the  price  stipulated  In  his  con- 
tract, the  subcontractor's  right  is  confined  to  what  may  be  due  the 
contractor  after  the  completion  of  the  contract':  Phillips  on  Me- 
chanics' Lions,  S  62g. 

"In  MaMMachuHettn.  the  subcontractor  is  entitled  to  a  direct  lien,  and 
there  is  no  provision  limiting  the  owner's  liability  to  the  amount 


OWNER—  EMPLOYER 


§  516.  Same.  Offsets  and  counterclaims  against  differ- 
ent payments.  The  final  payment  required  in  the  statutory 
original  contract  could  not  be  paid  by  the  owner  to  the 
prejudice  of  the  valid  lien  claims,  when  the  contract  was 
not  abandoned  by  the  contractor.9 

The  owner  has  no  right  to  recover  damages  when  the  con- 
tractor has  the  right  to  abandon  the  contract  owing  to  the 
fault  of  the  owner.10 

In  case  of  the  abandonment  of  a  valid  statutory  original 
contract,  the  final  payment  of  twenty-five  per  cent  was  not 
applicable  to  subclaimants  furnishing  materials  or  perform- 
ing labor  before  the  abandonment,  as  their  rights  were  fixed 
by  the  provisions  of  section  twelve  hundred  of  the  Code  of 
Civil  Procedure  of  California.11 

Additional  matter  to  foot-note  22.  12 

named.  In  the  contract.  For  that  reason  it  is  held  in  Bowen  v.  Phin- 
ney,  162  Mass.  593,  39  N.  E.  Rep.  283,  44  Am.  St.  Rep.  391,  that  a 
subcontractor  was  entitled  to  his  lien  notwithstanding  the  contractor 
violated  the  contract  and  used  poor  materials.  The  opinion  recognized 
that  in  other  states,  where  the  owner's  liability  is  limited  to  the 
amount  of  the  contract  price,  a  different  rule  obtains,  and  Wright  v. 
Pohls,  and  Morehouse  v.  Moulding,  supra,  .are  referred  to.. 

"The  conclusion  is  that,  giving  a  reasonable  construction  to  our 
statute,  it  should  be  held  that  the  owner  may,  in  a  suit  by  a  subcon- 
tractor, offset  any  actual  damages  caused  by  the  failure  of  the  con- 
tractor to  complete  the  building  in  time,  provided,  of  course,  the  dam- 
ages are  such  as  may  be  said  to  have  been  in  the  contemplation  of 
the  parties  when  the  contract  was  made." 

Washington.  Owner  must  look  to  original  contractor  for  damages 
for  improper  materials  and  can  not  counterclaim  such  damages  in  suit 
to  foreclose  lien  of  subcontractor:  Rieflin  v.  Grafton  (Wash.),  115 
Pac.  Rep.  851,  853. 

9  California.     Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  229,  233,   101  Pac. 
Rep.   691.     See  D.   I.  Nofziger  L.  Co.   v.   Solomon,   13   Cal.   App.   621,   90 
Pac.   Rep.   474,   475. 

10  California.    Vulcan  I.  Works  v.  Cook  (Cal.  App.),  114  Pac.  Rep.  995. 

11  California.      Hoffman-Marks    Co.    v.    Spires,    154    Cal.    Ill,    116,    97 
Pac.  Rep.  152;  H.  Raphael  Co.  v.  Grote,  154  Cal.  137,  97  Pac.  Rep.  Ill; 
Duffy  L.  Co.  v.  Stanton,  9  Cal.  App.  38,  98  Pac.  Rep.   38. 

§  1200,  Code  Civ.  Proc.,  was  repealed  by  Stats.  &  Amdts.  1911,  pp. 
1313  et  seq. 

12  California.     See  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621, 
110  Pac.   Rep.   474,  475;   Otis  E.  Co.  v.  Brainerd,   10   Cal.  App.   229,   233, 
101  Pac.  Rep.  691.     See  preceding  note. 

Hampton  v.  Christensen,  148  Cal.  729,  84  Pac.  Rep.  200,  was  not  a 
case  of  abandonment,  and  the  court  made  no  reference  to  §  1200  Code 
Civ.  Proc.  The  decision  is  not  to  be  understood  as  holding  that  this 
section  does  not  furnish  ample  and  complete  provision  for  cases  fall- 
ing within  its  terms.  In  such  case,  the  balance  computed  according 


<?  517  MECHANICS'    LIENS — SUPPLEMENT. 

§  517.  Same.  Damage  for  delay  in  performance.  Pre- 
vention of  performance  by  independent  contractor.  The 
owner  is  not  responsible  to  an  original  contractor  for  the 
acts  of  an  independent  contractor,  especially  where  the 
contract  itself  contemplates  that  delays  may  be  caused  by 
the  acts  of  such  other  contractors  and  that  allowance  there- 
for should  be  made  to  complete  the  work.13  Damages  pro- 
vided in  the  original  contract  for  delay  have  no  bearing  on 
the  measure  of  damages  for  abandonment  and  failure  to 
complete  the  work  altogether.14  Loss  by  delay  caused 
by  the  owner  or  his  agent  can  not  be  counterclaimed  by  the 
owner.13 

Delays  caused  by  other  contractors.  It  is  in  the  nature 
of  building  operations,  when  different  classes  of  work  are 
being  done  by  various  contractors  that  it  will  often  happen 
that  one  contractor  must  wait  until  the  work  of  another 
has  been  done;  and  it  has  been  held  that  delays  arising 
from  such  causes  are  not  prevention  or  in  any  sense  delay 
for  which  the  owner  is  chargeable.16 


to  the  method  prescribed  by  the  section  of  the  statute  mentioned,  Is 
all  that  the  owner  Is  required  to  devote  to  the  discharge  of  such 
Hens;  In  Stimson  M.  Co.  v.  Nolan,  5  Cal.  App.  754,  91  Pac.  Rep.  262, 
there  was  a  void  statutory  original  contract,  and  the  claimants  were 
entitled  to  Hens  for  the  full  value  of  the  labor  performed  and  mate- 
rials furnished:  Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  116,  97 
Pac.  Rep.  152. 

Colorado.  Deduct  Ions  for  malperformance  of  detail*  s  Ross  M.  &  M. 
Co.  v.  Sethman  (Colo.),  114  Pac.  Rep.  287. 

\\iiwhliiKlon.  Abandonment <  See  Gordon  v.  Gillespie,  58  Wash. 
62,  109  Pac.  Rep.  109,  110. 

is  California.     Seebach  v.  Kuhn,  9  Cal.  App.  485,  99  Pac.  Rep.  723. 

14  California.  Bacigalupi  v.  Phoenix  B.  &  C.  Co.  (Cal.  App.),  112 
Pac.  Rep.  892,  894. 

is  California.  Boyd  v.  Bargagllottl,  12  Cal.  App.  228,  238,  107  Pac. 
Rep.  150;  Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  229,  233,  101  Pac.  Rep. 
691;  Lacy  Mfgr.  Co.  v.  Los  Angeles  G.  &  E.  Co.,  12  Cal.  App.  37,  42. 
106  Pac.  Rep.  413. 

Idaho.  Damage*  for  delay:  Steltz  v.  Armory  Co.,  15  Idaho  551,  99 
Pac.  Rep.  98,  101. 

IWIIIMIIM.  Damage*  for  delay  In  contemplation  of  partlent  See  Fos- 
sett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833.  839. 
See  this  case  in  full,  §  515,  this  Supplement,  ante,  note. 

16  California.     Seebach  v.  Kuhn,  9  Cal.  App.  485,  490,  99  Pac.  Rep.  723. 

Oklahoma.  Menwure  of  damage*  for  failure  to  deliver  material*  In 
time:  Standard  L.  Co.  v.  Miller  &  Vldor  L.  Co..  21  Okl.  617.  96  Pac. 
Rep.  761,  765. 


183  OWNER — EMPLOYER.  RS  517-519 

Additional  matter  to  foot-note  23. 17 

§  518.  Same.  Completion  of  contract  by  owner.  A  pro- 
vision in  a  building  contract  whereby  the  owner  may  take 
charge  of  and  complete  the  building  in  case  of  failure  of 
the  contractor  to  proceed  within  a  certain  time,  or  upon 
his  abandonment  of  the  contract,  is  in  favor  of  the  owner, 
and  he  has  the  option  to  waive  the  same.18 

§  519.  Same.  Right  to  complete  construction  upon  aban- 
donment. Where  the  work  of  completion  is  done  by  the 
owner  pursuant  to  the  terms  of  the  contract,  upon  abandon- 
ment by  the '  contractor,  the  owner  is  liable  only  for  the 
balance  of  the  contract  price  that  may  remain  over  and 
above  the  cost  of  completion.19  In  case  of  the  abandonment 
of  a  valid  statutory  original  contract,  the  rights  of  the  sub- 
claimants  who  furnished  materials  and  performed  labor 
before  the  abandonment  were  fixed  by  the  statute,20  and  the 
final  payment  of  twenty-five  per  cent  provided  for  in  the 
contract  was  not  applicable  to  the  payment  of  their  liens.21 

Additional  matter  to  foot-note  26. 22 


Washington.  Loss  of  rentals:  See  Jones  v.  Nelson  (Wash.),  112 
Pac.  Rep.  88. 

17  California.  No  damages  for  delay  when  contractor  has  a  right  to 
abandon  contract:  Vulcan  I.  Works  v.  Cook  (Cal.  App.),  114  Pac. 
Rep.  995. 

is  California.     Dahlberg  v.  Girsch,  157  Cal.  324,  330,  107  Pac.  Rep.  616. 

Colorado.     Gillett  v.  Young,  45  Colo.  562,  10.1  Pac.  Rep.  766,  768. 

And  having  elected  and  recouped  for  the  expenditures  made,  the 
owner  can  not  be  heard  to  say  that  the  contractor  abandoned  the 
contract  on  his  part:  Gillett  v.  Young,  supra. 

19  California.     O'Brien   v.    Garibaldi    (Cal.    App.),    115    Pac.    Rep.    249, 
252    (no   lien   claims   and    §  1200,  Code  Civ.   Proc.,   was   not   under   con- 
sideration): Dahlberg  y.  Girsch,  157  Cal.  324,  330,  107  Pac.  Rep.  616. 

Colorado.  And  the  'owner  may  also  recover  from  the  contractor 
any  excess  of  the  cost  of  completion  over  the -contract  price:  Hottel 
v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac.  Rep.  918,  921. 

20  California.     §1200,    Code    Civ.    Proc.     (before    repeal    by    Stats.    & 
Amdts.   1911,  pp.  1313  et  seq.). 

21  California.     H.    Raphael    Co.   v.   Grote,   154   Cal.    137,   97    Pac.    Rep. 
155;  Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  97  Pac.  Rep.  152. 

22  California.     Completion    by    owner    after    abandonment,    comple- 
tion  under  contract:     See   O'Brien  v.   Garibaldi    (Cal.   App.),   115   Pac. 
Rep.   249,   252. 


§  520 


MECHANICS'    LIENS  —  SUPPLEMENT. 


§  520.  Same.  Right  to  materials  upon  abandonment. 
Before  its  repeal,  section  twelve  hundred,  relating  to  the 
liability  of  the  owner  upon  contractor's  abandonment,  and 
others  on  the  subject,  related  exclusively  to  the  liens  of 
mechanics,  laborers  and  material-men  and  to  the  protection 
of  the  owner  against  lien  claimants  and  the  limitation  of 
the  owner's  liability  in  his  relation  with  the  contractor  and 
lien  claimants.  It  did  not  purport  nor  attempt  to  define 
or  interfere  with  the  contractual  relation  between  the  con- 
tractor and  his  subcontractors  until  the  subcontractor  had 
brought  himself  within  the  provisions  of  the  mechanics  '- 
lien  law,  by  performing  labor  or  by  a  sale  and  delivery  to 
the  contractor  of  the  materials  to  be  used  in  the  building. 
Section  twelve  hundred  referred  to  a  case  where  the  owner 
had  made  and  filed  a  valid  contract  writh  the  contractor  who 
abandoned  the  building  in  an  unfinished  condition.  The 
section  contemplated  its  completion  by  the  owner  whose 
liability  to  lien  claimants  was  limited  by  his  contract  with 
the  contractor.  The  payments  then  (upon  such  abandon- 
ment) due,  and  actually  paid,  were  to  be  deducted  from  the 
value  of  the  work  and  materials  already  done  and  furnished, 
including  materials  actually  delivered  and  on  the  ground, 
according  to  the  terms  of  the  contract  and  the  provisions 
of  sections  eleven  hundred  and  eighty-three  and  eleven  hun- 
dred and  eighty-four,  and  the  remainder  became  applicable 
to  the  liens  provided  for  in  said  last  mentioned  sections. 

Materials  actually  delivered  and  on  the  ground  were,  for 
the  purpose  of  this  equitable  adjustment,  declared  to  "be- 
long to  the  owner,"  but  this  declaration  could  not  be  held 
to  mean  materials  which  had  never  been  sold  to  the  con- 
tractor and  had  never  been  delivered  to  the  contractor  to 
be  by  him  used  in  the  construction  of  the  building,  but  which 
in  fact  belonged  to  some  other  person. 

Such  a  case  is  very  different  from  the  cases  contemplated 
by  and  ordinarily  arising  under  the  mechanics'  lien  law, 


Kansas.  See  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428, 
92  Pac.  Rep.  833,  839;  and  see  this  case  in  full,  §  515,  this  Supplement, 
ante,  note. 


OWNER—  EMPLOYER. 


c  52Q 


where  materials  had  been  sold  to  the  contractor,  and  actu- 
ally delivered  and  on  the  ground.  The  seller  parted  with 
his  property  as  in  any  other  case  of  sale  and  delivery,  and, 
but  for  the  lien  given  to  the  seller,  as  a  material-man,  he 
would  have  had  no  recourse,  except  as  against  the  con- 
tractor. 

It  had  no  application  to  the  case  of  a  subcontractor  (as 
distinguished  from  a  mere  material-man)  whose  material 
had  not  been  actually  used  by  such  subcontractor  in  the 
particular  work  in  which  he  was  employed,  and  which 
materials  had  not  passed  to  the  contractor  or  owner  under 
the  ordinary  rules  pertaining  to  the  law  of  sales  of  goods. 

The  mere  fact  that  the  subcontractor  charged  the  mate- 
rials on  its  books  to  the  contractor  could  not  affect  the 
question,  when  their  contractual  relation  was  clearly  de- 
fined by  a  written  subcontract  and  the  evidence  showed 
that  the  materials  were  delivered  under  such  contract  and 
it  was  not  a  contract  for  the  sale  of  goods  only.23  Where 
the  contractor  abandoned  his  contract,  the  statute  dealt 
only  with  the  relation  of  lien  claimants  with  the  owner  in 
respect  of  their  rights  as  lien  claimants  and  his  liability 
to  them  as  such.  But  it  did  not  affect  the  contractual  rela- 
tions between  the  contractor  and  subcontractors  who  claimed 
no  lien.  The  statute  did  not  contemplate  that  the  owner  of 
the  building  might  take  property  not  belonging  to  the 
contractor.24 


23  California.     §  1200,    Code    Civ.    Proc.,    was    repealed    by    Stats.    & 
Amdts.   1911,  pp.   1313   et  seq. 

"The  statute  does  not  contemplate  that  the  owner  of  the  building 
may  take  property  not  belonging  to  the  contractor.  Golden  Gate 
L.  Co.  v.  Sahrbacher,  105  Cal.  114,  38  Pac.  Rep.  635,  and  McDonald  v. 
Hayes,  132  Cal.  490,  64  Pac.  Rep.  850,  were  cases  of  foreclosure  of 
liens  where  the  parties  brought  themselves  within  the  statute  and 
proceeded  under  it."  (In  this  present  case,  the  owner  was  a  mu- 
nicipal corporation,  and  no  mechanic's  lien  could  be  enforced  against 
the  property,  although  proceedings  against  the  fund  in  the  nature 
of  a  garnishment  was  open  to  the  subcontractor,  and  the  materials 
had  not  yet  actually  been  used.)  Steiger  T.  C.  &  P.  Works  v.  City 
of  Sonoma,  9  Cal.  App.  698,  702,  703,  100  Pac.  Rep.  714  (hearing  in 
Supreme  Court  denied). 

24  California.     Steiger   T.   C.   &  P.  Works  v.   City   of   Sonoma,   9   Cal. 
App.   698,   703,   704,   100   Pac.   Rep.   714    (hearing   in  Supreme   Court   de- 
nied).    See   preceding   note. 


§§  520a,  521.    MECHANICS-  LIENS— SUPPLEMENT.  jgG 

§  520a.  Same.  Equitable  rule  and  basis  of  liability  to 
contractor.  The  rule  is  well  established  that  in  ordinary 
cases  the  contractor  under  a  building  contract  may  recover 
against  the  owner,  notwithstanding  that  he  has  not  strictly 
complied  with  hig  contract  because  of  minor  defects  and  im- 
perfections, and  even  omissions,  not  willful  or  fraudulent. 
This  rule  is  sometimes  spoken  of  as  the  modern  equitable 
doctrine  of  substantial  performance. 

It  rests  for  its  justification  upon  the  proposition  that  in 
such  cases  the  owner  has  either  accepted  the  benefit  of  the 
work  of  the  contractor  or,  because  of  the  nature  of  the 
transaction,  he  perforce  receives  such  benefit  to  his  property, 
and  may  be  protected  from  any  actual  pecuniary  loss  by  a 
recoupment  in  damages  for  deficiencies  and  imperfections. 
Oftentimes  minor  defects  and  imperfections  occur  in  the 
construction  or  repair  of  buildings  without  intentional  fault 
of  the  contractor.  For  such  defects  the  owner  may  be 
readily  made  whole  by  an  allowance  of  damages.  So,  too, 
under  the  mechanics'  lien  law  it  is  provided  that,  for  the 
purpose  of  filing  liens,  a  building  shall  not  be  held  uncom- 
pleted because  of  trivial  imperfections.25 

§  521.    Same.     Rights  against  others. 

Subsequent  judgment  in  favor  of  the  owner  against  the 
estate  of  the  original  contractor  can  not  affect  the  liability 
of  the  owner  upon  garnishment  by  way  of  execution  levied 
upon  him  prior  to  the  death  of  the  contractor,  at  the  instance 
of  the  contractor's  subclaimants,  for  the  indebtedness  due 
from  the  owner  to  the  contractor.26 

Additional  matter  to  foot-note  28.27 

25  Seebach  v.   Kuhn,   9  Cal.  App.   485,  99   Pac.   Rep.  723    (hearing  In 
Supreme   Court   denied),    citing   Perry   v.    Quackenbush,    105   Cal.    299, 
38  Pac.  Rep.  740;  Harlan  v.  Stufflebeem,  87  Cal.  508,  25  Pac.  Rep.  626; 
Bianchl  v.  Hughes,  124  Cal.  25,  56  Pac.  Rep.  610;  Marchant  v.   Hayes, 
117  Cal.  670,  49  Pac.  Rep.  840;  Santa  Monica  L.  Co.  v.  Hege,  119  Cal. 
376,   51   Pac.  Rep.   555. 

26  California.     Nordstrom  v.   Corona  City  W.  Co.,   155  Cal.   206,   214, 
100  Pac.  Rep.   242. 

27  California.     Damage"  for  failure  to  deliver  material* t     See  Fair- 
child-Gllmore-Wilton    Co.    v.    Southern    R.    Co.    (Cal.    Sup.),    110    Pac. 
Rep.  951. 

Kan«aa.  An  to  recoupment  for  damages  agalnat  subcontractor i 
See  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep.  1003,  1004; 


187  OWNER — EMPLOYER.  §s  522-524 

§  522.  Same.  Payments.  Where  the  owner  is  not  obliged 
to  make  the  payment  demanded  by  the  contractor,  the  latter 
is  not  justified  in  stopping  work  upon  the  refusal  of  the 
owner  to  make  the  payment  or  meet  the  expense ;  thus  where 
land  slides  from  adjoining  property  and  injures  the  building, 
the  owner  is  not  obliged  to  pay  the  expense  of  restoring  the 
building  to  the  condition  in  which  it  was  before  the  slide; 
and  the  contractor  may  not  legally  refuse  to  go  on  with 
the  work  for  this  reason  alone.28 

Additional  matter  to  foot-note  30.29 

Additional  matter  to  foot-note  31. 30 

Additional  matter  to  foot-note  32.31 

§  523.  General  obligations  of  owner  and  employer.  Scope 
of  discussion. 

Additional  matter  to  foot-note  34.32 

§  524.     Same.     Duty  to  file  statutory  original  contract. 
Additional  matter  to  foot-note  36.33 


Fossett  v.  Rock   Island  L.   &  Mfg.   Co.,   76   Kan.   428,   92   Pac.  Rep.   833, 
14  L.  R.  A.   (N.  S.),  918. 

Oregon.  As  to  absence  of  right  of  lateral  support  with  increased 
weight  of  building:  •  See  Weiss  v.  Kohlhagen  (Oreg.),  113  Pac. 
Rep.  46. 

28  California.     Carlson  v.  Sheehan,  157  Cal.  692,  697,  109  Pac.  Rep.  29. 

29  Oregon.     See  Bonn  v.  Wilson,  53  Oreg-.  490,  101  Pac.  Rep.  202,  204. 
Washington.     Premature   payment:     See    Monro   v.    National    S.    Co., 

47  Wash.   488,   92  Pac.  Rep.  280. 

Application  of  payment  by  owner: 

Oregon.     See  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202,  204. 

Washington.  See  Bowles  v.  Fraser  (Wash.),  109  Pac.  Rep.  812; 
Hughes  &  Co.  v.  Flint  (Wash.),  112  Pac.  Rep.  633. 

so  Kansas.  But  see  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428, 
92  Pac.  Rep.  833. 

31  Oregon.     Application  of  payment  by  contractor  to  material-man: 
See  Eugene  P.  M.  Co.  v.  Soule   (Oreg.),  106  Pac.  Rep.  21. 

32  California.      Obligation    of    owner    to    remove    earth    which    falls 
from  adjoining  property  by  natural  causes:     See  Carlson  v.  Sheehan, 
157  Cal.   692,   697,   109  Pac.   Rep.   29. 

33  California.     Compare    Lucas   v.    Gobbi,    10    Cal.   App.    648,    653,    103 
Pac.  Rep.   157. 

The  Statutory  Original  Contract  was  abolished  by  Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.,  but  the  duty  to  file  the  original  contract  is  still 
upon  the  owner,  to  limit  his  liability. 


§§  525-527          MECHANICS'    LIENS  —  SUPPLEMENT. 

§  525.     Same.    Duty  to  withhold  payments. 
Additional  matter  to  foot-note  37.  a4 
Additional  matter  to  foot-note  38.35 


§  526.  Same.  Liability  of  owner  to  breach  or  abandon- 
ment. Statutory  provision.™ 

§  527.  Same.  Application  of  statutory  provision.  :T 
Where  the  valid  statutory  original  contract  was  abandoned 
by  the  original  contractor,  before  the  amendment  of  1911, 
under  the  rule  of  the  statute,  when  the  value  of  the  work 
and  materials  already  done  and  furnished  at  the  time  of  the 
abandonment,  including  materials  then  actually  delivered 
or  on  the  ground,  estimated  as  near  as  might  be  by  the  stand- 
ard of  the  whole  contract  price,  was  less  than  the  payments 
then  due  and  actually  paid,  there  was  nothing  to  feed  the 
liens  of  the  contractor's  subclaimants.38  In  such  cases  the 
statutory  method  of  ascertaining  the  liability  of  the  owner's 
property  was  exclusive,  both  as  to  the  contractor  and  as  to 
his  subclaimants.39 

But  where  the  owner  elected  to  proceed  under  the  pro- 
visions of  the  valid  statutory  original  contract,  after  de- 
fault of  the  contractor  and  notice  to  him  of  his  intention  to 
complete  the  structure,  under  permission  given  in  the  con- 
tract, the  contractor  was  entitled  to  the  difference  between 


34  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  462,  94  Pac.  Rep.  775. 

as  Oklahoma.  See  Jones  v.  Balsley  (Okl.),  Ill  Pac.  Rep.  942;  s.  c., 
25  Okl.  344,  106  Pac.  Rep.  830. 

36  California.     51200,    Code    Civ.    Proc.,    was    repealed    by    Stats.    &. 
Amdts.   1911,  pp.   1313  et  seq. 

37  California.     See  preceding  note. 

38  California.     McCue  v.  Jackman,  7  Cal.  App.  703,  704,  95  Pac.  Rep. 
673;  Duffy  L.  Co.  v.  Stanton,  9  Cal.  App.  38,  98  Pac.  Rep.  38;  Hoffman- 
Marks  Co.   v.   Spires,    154   Cal.   Ill,   115,  97   Pac.   Rep.   152;   C.   Scheerer 
&  Co.  v.  Demlng,  154  Cal.  138,  141,  97  Pac.  Rep.  155;  H.  Raphael  Co.  v. 
Grote,  154  Cal.  137,  97  Pac.  Rep.  155. 

See  note  36,  this  chapter,  ante. 

so  California.  C.  Scheerer  &  Co.  v.  Demlng,  154  Cal.  138,  141,  97  Pac. 
Rep.  155.  See  note  36,  this  chapter,  ante. 


189  OWNER— EMPLOYER.  ss  527-530 

the  cost  of  completion  and  the  amount  otherwise  due  under 
the  contract.40 

Additional  matter  to  foot-note  42.41 

Additional  matter  to  foot-note  48. 42 

§  528.     Same.    Void  contract  abandoned. 
Additional  matter  to  foot-note  51. 43 

§  529.     Same.     Non-statutory  original  contract. 
Additional  matter  to  foot-note  53. 44 

§  530.  Same.  Destruction  of  building.  Upon  destruction 
of  a  building  in  process  of  erection,  without  fault  of  either 
party,  under  a  contract  providing  for  the  losses  that  should 
be  borne  by  the  respective  parties,  there  is  no  implied 
covenant  on  the  part  of  the  owner  that  the  building  or  work 
shall  continue  in  existence,  and  the  owner  is  not  liable, 
under  the  terms  of  the  contract,  if  there  is  nothing  due 
under  the  contract  to  the  contractor  at  the  time  of  the  de- 


40  California.     Dahlberg   v.    Girsch,    157  Cal.    324,   330,    107   Pac.    Rep. 
616;  O'Brien  v.  Garibaldi   (Cal.  App.),  115  Pac.  Rep.  249,  252. 

See   §  526,   this   Supplement,   ante,   note. 

41  California.     See,   generally,   Steiger   T.   C.   &   P.   Works   v.   City   of 
Sonoma,  9  Cal.  App.  698,  703,  704,  100  Pac.  Rep.  714;  and  see  §§  520  and 
526,   this   Supplement,   ante,   and   notes. 

Colorado.  Upon  abandonment  and  completion  by  owner  under  the 
contract,  the  lien  of  subclaimants  extends  to  the  difference  between 
the  amount  paid  at  the  time  of  abandonment  and  the  contract  price, 
less  the  cost  of  completing  the  contract:  Rice  v.  Rhone  (Colo.), 
Ill  Pac.  Rep.  585,  587. 

Utah.  See  Foulger  v.  McGrath,  34  Utah,  86,  95  Pac.  Rep.  1004, 
1006,  1007. 

Washington.  Measure  of  damages  is  the  difference  between  the 
contract  price  and  the  actual  cost  of  completing  the  work;  and  the 
liability  of  the  contractor  arises  as  soon  as  the  contract  is  breached 
by  abandonment:  Gordon  v.  Gillespie,  58  Wash.  62,  109  Pac.  Rep. 
109,  110. 

See   §§  284   et  seq.,  this  Supplement,  ante. 

42  California.     See    Hoffman-Marks    Co.   v.    Spires,    154    Cal.    Ill,    115, 
97  Pac.   Rep.   152. 

43  California.     Abandonment   of  void   contract:      See   Hoffman-Marks 
Co.   v.   Spires,   154   Cal.    Ill,    116,    97   Pac.   Rep.    152;    Stimson   M.   Co.   v. 
Nolan,   5  Cal.  App.   754;   91  Pac.  Rep.   262. 

See  §§  258,  269,  274,  281,  288,  328,  and  526,  this  Supplement,  ante. 

44  See  Effect  of  Validity  of  Contract,  §§  315  et  seq.,  this  Supplement, 
ante. 


§§530-532 


MECHANICS'    LIENS  —  SUPPLEMENT. 


struction.45  And,  on  the  other  hand,  it  seems  that  there 
is  no  implied  agreement,  under  such  circumstances,  that  the 
contractor  shall  rebuild  after  such  destruction.46 

And  the  rule  regarding  acceptance  of  benefits  of  the  work 
by  the  owner,  under  the  circumstances  stated,  does  not 
come  into  operation,  and  subclaimants  can  not  foreclose  a 
lien.47  But  where  a  structure  is  destroyed  before  com- 
pletion, for  instance,  where  a  bridge  is  carried  away  by 
floods,  the  failure  of  the  owner  to  derive  benefits  is  no 
defense  in  an  action  for  the  reasonable  value  of  the  work 
done,  if  the  damage  was  caused  by  fault  of  the  owner,  as 
where  he  failed  to  supply  the  materials  as  stipulated.48 

§  531.  Same.  Liability  of  fee  for  improvements,  by 
trespasser. 

Additional  matter  to  foot-note  55.49 

§  532.  Same.  Application  of  payments  by  subclaimants. 
When  the  owner  makes  a  general  settlement  with  the  con- 
tractor by  check  which  is  endorsed  by  the  contractor  to  his 
material-man,  there  being  no  application  by  the  owner  to 
any  particular  building,  the  subclaimant  may  properly  apply 
it  to  one  or  more  of  the  owner's  buildings,  for  which  he 
furnished  materials.50 

Additional  matter  to  foot-note  56.51 


45  California.     Watson  v.  Alta  I.  Co.,   12  Cal.  App.  560,   565,  108  Pac. 
Rep.  48;  Watson  v.  Alta  I.  Co.,  12  Cal.  App.   566,   108  Pac.  Rep.   50. 

46  California.     Hettinger  v.   Thiele    (Cal.  App.),   113   Pac.  Rep.   121. 

47  California.     Watson  v.  Alta  I.  Co.,  12  Cal.  App.   560,  565,  108  Pac. 
Rep.  48;  Watson  v.  Alta  I.  Co.,  12  Cal.  App.  566,  108  Pac.  Rep.  50. 

48  California,     boyd  v.   Bargagliotti,    12   Cal.   App.   228,   237,    107   Pac. 
Rep.  150. 

48  Oregon.  Claimant  munt  connect  hlnmelf  with  the  owner  of  the 
property:  Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac.  Rep. 
447,  450;  Washburn  v.  Intermountain  M.  Co.  (Oregr.),  109  Pac.  Rep.  383, 
385;  Crane  Co.  v.  Erie  H.  Co.  (Ores-),  112  Pac.  Rep.  430. 

BO  California.  San  Pedro  L.  Co.  v.  Schroeter,  156  Cal.  158,  161,  103 
Pac.  Rep.  888,  distinguishing  Goss  v.  Strelitz,  54  Cal.  640,  in  which 
there  appears  to  have  been  an  attempt  to  apply  the  payment  to  another 
and  distinct  indebtedness  in  which  the  owner  was  in  nowise  involved. 

si  California.  Proper  application  by  aubclalmant  of  check  given  to 
contractor  by  owner  on  general  account,  without  application:  San 
Pedro  L.  Co.  v.  Schroeter.  156  Cal.  158,  161,  103  Pac.  Rep.  888. 


191  OWNER— EMPLOYER.  §§532-537 

Additional  matter  to  foot-note  58. 52 

§  533.  Same.  Payment  of  orders  of  contractor.  Split- 
ting demands. 

§  534.  Same.  Orders  on  owner's  mortgagee.  Destruc- 
tion of  building.53 

§  535.  Same.  Voluntary  payment  of  contractor's  debts. 
The  owner  has  no  means  of  ascertaining  whether  the  claims 
of  subclaimants  are  just  or  unjust.  He  can  not,  except  at 
his  peril,  voluntarily  pay  them,  and  in  the  absence  of  any 
action  on  the  part  of  the  contractor,  the  owner  is  entitled 
to  have  the  rights  of  the  claimants  established  by  decree  of 
court.54 

Additional  matter  to  foot-note  61. 55 

§  536.     Same.     Guaranty  not  a  prohibited  payment. 

§  537.     Same.    Owner  as  stakeholder. 
Additional  matter  to  foot-note  66.56 


Montana.  The  burden  of  proof  as  to  application  of  payment  to  ex- 
tras is  on  claimant  and  not  upon  owner:  Piper  v.  Murray  (Mont.), 
115  Pac.  Rep.  669,  672. 

If  the  contractor  credits  the  payment  on  owner's  building,  sub- 
claimant  can  not  credit  or  apply  it  to  other  buildings:  Mills  v.  Olsen 
(Mont.),  115  Pac.  Rep.  33,  36. 

Oregon.  Application  of  payment  by  contractor  on  paying  Ills  ma- 
terial-man: See  Eugene  P.  M.  Co.  v.  Snell  (Oreg.),  106  Pac.  Rep.  21. 

52  California.     See  O'Brien  v.  Garibaldi  (Cal.  App.),  115  Pac.  Rep.  249. 

53  See  §  530,  this  Supplement,  ante. 

54  California.     Klokke  v.  Raphael,  8  Cal.  App.  1,  5,  96  Pac.  Rep.  392. 

55  Kansas.     Right  of  owner  to  retain  fund:     Wichita  S.  &  D.  Co.  v. 
Weil,  80  Kan.  606,  103  Pac.  Rep.  1003,  1004;  Fossett  v.  Rock  Island  L.  & 
Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833,  836. 

Oklahoma.  Owner  pays  at  his  peril  prior  to  time  fixed  by  statute: 
Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  546;  Jones  v.  Balsley 
(Okl.),  Ill  Pac.  Rep.  942;  s.  c.,  25  Okl.  344,  106  Pac.  Rep.  830  (and  owner 
may  withhold  same  until  such  time). 

56  California.     As  to  lack  of  owner's  right  to  withdraw  general  de- 
posit:    See  Los  Angeles  P.  B.  Co.  v.   Hlgglns,   8   Cal.  App.   514,   523,  97 
Pac.    Rep.    414,    420.     See    Higgins   v.    Keyes,    5    Cal.    App.    482,    90    Pac. 
Rep.  972. 

New  York  practice  as  to  deposit  adopted;  substitute  of  fund  for 
land:  Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  413,  101  Pac.  Rep.  307. 


§§  538    539         MECHANICS'    LIENS — SUPPLEMENT.  J92 

$  538.  Same.  Liability  for  costs  and  interest.  Inter- 
pleader. 

Additional  matter  to  foot-note  68.57 
Additional  matter  to  foot-note  70.58 
Additional  matter  to  foot-note  72.50 

§  539.     Same.    Personal  liability. 
Additional  matter  to  foot-note  73. °° 

See  Ward  v.  Kllpatrick.  85  N.  Y.  413,  39  Am.  Rep.  674;  Dunning:  v. 
Clark,  2  E.  D.  Smith  535;  People  v.  Butler,  61  How.  Pr.  274;  Raven  v. 
Smith,  76  Hun.  60,  27  N.  Y.  Supp.  611;  In  re  Dean,  83  Hun.  413,  31  N.  Y. 
Supp.  959;  Schlllinger,  etc.,  Co.  v.  Arnott,  86  Hun.  182,  33  N.  Y.  Supp. 
343,  affirmed,  152  N.  Y.  584,  46  N.  E.  Rep.  956. 

KiuiMiiN.  The  statute  of  this  state  makes  no  provision  for  deposit, 
and  same  does  not  affect  lien  on  land:  Wichita  S.  &  D.  Co.  v.  Well, 
80  Kan.  606.  103  Pac.  Rep.  1003,  1004. 

57  California.     Action  by  owner  to  compel  claimants  to  litigate  their 
claims  i     See  Hartwell  v.  Ganahl  L.  Co.,  8  Cal.  App.  733,  97  Pac.  Rep.  901. 

Interest! 

California.  See  Burnett  v.  Glas,  154  Cal.  249,  260,  97  Pac.  Rep.  423; 
s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.  856. 

WnnliliiKtou.     See  Jones  v.  Nelson  (Wash.),  112  Pac.  Rep.  88. 

See,  generally,  §  907,  this  Supplement,  post. 

58  DepOMlt  In  court: 

California*;  See  Klokke  v.  Raphael,  8  Cal.  App.  1,  5,  96  Pac.  Rep.  392; 
Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514.  522,  97  Pac.  Rep.  414, 
420;  Higgins  v.  Keyes,  5  Cal.  App.  482,  90  Pac.  Rep.  972;  Stockton  L.  Co. 
v.  Schuler,  155  Cal.  411,  413,  101  Pac.  Rep.  307. 

Kan»a».  See  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep. 
1003,  1004. 

See,  also,  |  537,  this  Supplement,  ante,  notes;  and  |  871,  this  Supple- 
ment, post. 

59  Wanhlngrton.     But  If  owner  tender**  amount  he  should  not  be  pen- 
alized by  costs  and  attorney's  fees:     Hughes  &  Co.  v.  Flint   (Wash.), 
112  Pac.  Rep.  633,  635. 

eo  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
274,  96  Pac.  Rep.  788;  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App. 
514,  521,  97  Pac.  Rep.  414,  420;  Nordstrom  v.  Corona  City  W.  Co.,  155 
Cal.  206,  100  Pac.  Rep.  242. 

Idaho.  Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac.  Rep. 
24,  27. 

Kansas.  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac. 
Rep.  80,  81;  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556.  109  Pac.  Rep. 
179,  180,  181;  Sutherlln  v.  Chesney  (Kan.  Sup.),  116  Pac.  Rep.  254. 

See  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep.  1003,  1004. 

Montana.  Logan  v.  Billings  &  N.  R.  Co.,  40  Mont.  467,  107  Pac.  Rep. 
415;  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108  Pac.  Rep.  353, 
357. 

Oklahoma.  See  Bloch  v.  Pearson,  19  Okl.  422,  91  Pac.  Rep.  714;  Al- 
bert! v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  547. 


193  OWNER — EMPLOYER.  SS  539    54(1 

Additional  matter  to  foot-note  74.61 

Additional  matter  to  foot-note  76.62 

Additional  matter  to  foot-note  77.63 

Additional  matter  to  foot-note  82.64 

§  540.     Same.    Liability  of  owner  or  employer  under  valid 
contract. 

Additional  matter  to  foot-note  83. 65 
Additional  matter  to  foot-note  85. 66 
Additional  matter  to  foot-note  88. 6" 


Washington.     Liability  of  owner  for  negligence  of  contractor:     See 

Gary  v.  Sparkman  &  McLean  (Wash.),  113  Pac.  Rep.  1093. 

Washington.  See  Bellingham  v.  Linck,  53  Wash.  208,  101  Pac.  Rep. 
843,  844. 

Utah.  Volker-Scowcroft  L.  Co.  v.  Vance  (Utah),  103  Pac.  Rep.  970; 
s.  c.,  32  Utah  74,  88  Pac.  Rep.  896. 

ei  California.  Hubbard  v.  Lee,  6  Cal.  App.  602,  606,  92  Pac.  Rep.  744; 
s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528. 

Kansas.  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep. 
1003,  1004;  Fossett  v.  Rock  Island  L.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833, 
14  L.  R.  A.  (N.  S.)  918. 

Oregon.  Claimant  must  conneet  himself  with  the  owner:  Equitable 
S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac.  Rep.  447,  450;  Crane  Co.  v. 
Erie  H.  Co.  (Oreg.),  112  Pac.  Rep.  430. 

62  Arizona.      Harper  v.  Independence  D.  Co.  (Ariz.),  108  Pac.  Rep.  701. 

California.  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  375,  92  Pac.  Rep. 
844. 

Idaho.     Larson  v.  Carter,  14  Idaho  511,  94  Pac.  Rep.  825,  827. 

Oklahoma.     Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  546. 

Washington.      See  Shaw  v.  Spencer,  57  Wash.  587,  107  Pac.  Rep.  383. 

03  California.  Hubbard  v.  Lee,  6  Cal.  App.  602,  606,  92  Pac.  Rep.  744; 
s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528;  Los  Angeles  P.  B.  Co.  v.  Hig- 
gins,  8  Cal.  App.  514,  524,  526,  97  Pac.  Rep.  414,  420;  Smith  v.  Dryden 
(Cal.  App.),  115  Pac.  Rep.  455. 

64  See  §§  572,  et  seq.,  this  Supplement,  post. 

Washington.     Erickson  v.  Hochbrune,  47  \vash.  33,  91  Pac.  Rep.  485. 

65  See,  generally,  §§  315,  et  seq.,  '§§  452,  et  seq.,  §§  469,  et  seq.,  this  Sup- 
plement, ante. 

66  California.     Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill,  116,  97  Pac. 
Rep.   152. 

Kansas.  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep. 
1003,  1004. 

67  California.     Stockton  L.  Co.  v.  Schuler,  155  Cal.   411,  412,   101  Pac. 
Rep.  307;  D.  I.  Nofziger  L.  Co.  v.  Waters,   10  Cal.  App.  89,  92,   101  Pac. 
ivep.  38. 

Idaho.     Sanders  v.   Keller   (Idaho),   111  Pac.  Rep.   350. 
Kansas.     Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac. 
Rep.  833,  836. 

Washington.     Hughes  &  Co.  v.  Flint   (Wash.),  112  Pac.  Rep.  633,  635. 

Bloom's  Sup. — 13 


§8540-544          MECHANICS'    LIENS— SUPPLEMENT.  ]  94 

Additional  matter  to  foot-note  91.68 

£  541.    Same.    Payment  to  subclaimants.    Valid  contract. 
Last  payment. 
Additional  matt'er  to  foot-note  92.°° 

ji  542.  Same.  Liability  of  owner  under  void  contract. 
I'mlrr  a  void  statutory  original  contract,  subclaimants  had 
a  direct  lien,  independent  of  the  contract  price.70 

Additional  matter  to  foot-note  93.71 

Additional  matter  to  foot-note  95.72 

§  543.    Void  contract.    Penal  provision.73 
Additional  matter  to  foot-note  98.74 

§  544.  Same.  Statute  measure  of  liability  under  void 
contract. 

Additional  matter  to  foot-note  99.75 


«ft  California.  See  Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  413,  101 
Pac.  Rep.  307. 

«o  California.  See  Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  413,  101 
Pac.  Rep.  307.  See,  also,  Merced  L.  Co.  v.  Bruschl,  152  Cal.  372,  374. 
92  Pac.  Rep.  844  (void  contract — liability  for  any  balance  of  amount 
claimed  and  lien  established  above  amount  distributed  by  owner 
among  claimants). 

TO  California.  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  374,  92  Pac. 
Rep.  844. 

The  Statutory  Original  Contract  was  abolished  by  amendment  of 
May  1.  1911.  to  51183,  Code  Civ.  Proc.  (Stats,  and  Amdts.  1911,  pp. 
1313  et  seq.). 

See  ||  258,  269,  274.  281,  288  and  328,  this  Supplement,  ante. 

n  See  I  541,  this  Supplement,  ante. 

T:  California.  See  Los  Angeles  P.  B.  Co.  v.  Hlggins,  8  Cal.  App.  514, 
524.  526,  97  Pac.  Rep.  414,  420. 

TS  California.  The  Statutory  Original  Contract  was  abolished  by 
Amendment  of  May  1,  1911,  to  {  1183,  Code  Civ.  Proc.  (Stats,  and 
Amdts.  1911.  pp.  1313  et  seq.). 

See  ||  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

T4  California.  See  Hubbard  v.  Lee,  6  Cal.  App.  602.  606,  92  Pac.  Rep. 
744:  s.  c..  10  Cal.  App.  477,  102  Pac.  Rep.  528;  D.  I.  Nofziger  L.  Co.  v. 
Waters.  10  Cal.  App.  89.  92.  101  Pac.  Rep.  38. 

75  California.  See  Smith  v.  Dryden  (Cal.  App.),  115  Pac.  Rep.  455; 
D.  I.  Nofziger  L.  Co.  v.  Waters,  10  Cal.  App.  89,  92.  101  Pac.  Rep. 
38;  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822,  101  Pac.  Rep. 
537;  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621,  110  Pac.  Rep. 


195  OWNER— EMPLOYER.  §§545,546 

§  545.     Same.     Personal  liability  to  subclaimants  under 
void  contract. 

Additional  matter  to  foot-note  102.7G 

§  546.  Same.  False  representations  by  owner  as  to  com- 
pletion of  building. 

474,  476;  Baker  v.  Lake  L.  C.  &  1.  Co.,  7  Cal.  App.  482,  94  Pac.  Rep. 
773. 

See  note  73,  §  543,  this  Supplement,  ante. 

76  California.  Hubbard  v.' Lee,  6  Cal.  App.  602,  606,  92  Pac.  Rep. 
744;  s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528;  Smith  v.  Dryden  (Cal. 
App.),  115  Pac.  Rep.  455;  San  Pedro  L.  Co.  v.  Schroeter,  156  Cal.  158, 
161,  103  Pac.  Rep.  888.  See  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App. 
482,  483,  94  Pac.  Rep.  773. 

See  note  73,  §  543,  this  Supplement,  ante. 


§§  547-550          MECHANICS'    LIENS — SUPPLEMENT. 


CHAPTER  XXVII. 

OWNER,    EMPLOYER,    OR    PERSON   CAUSING   IMPROVEMENT 

TO  BE  MADE   (CONTINUED).     LIABILITY  AS 

FIXED  BY  NOTICE. 

§  547.     Scope  of  discussion. 
Additional  matter  to  foot-note  2.1 

^  548.     Notice  to  owner  or  employer.    History.2 

§  549.    Statutory  provision/5 
Additional  matter  to  foot-note  13.4 

§  550.  Notice  to  owner,  and  claim  of  lien.  Distinction 
and  purposes.  The  statutes  of  the  different  jurisdictions 
require  various  notices,  the  giving  qf  which,  or  the  failure 
to  give  which,  has  effect  to  be  determined  and  measured  by 
the  construction  given  to  the  respective  statutes.  In  some 
states,  the  giving  of  certain  notices  is  essential  to  the  valid- 
ity of  the  lien,  while  other  notices  under  the  same  statute 
affect  merely  the  measure  of  recovery,  or  the  extent  of  the 
lien  on  the  fund  or  indebtedness  due  from  the  owner.5 


1  Am  to  Notice  of  non-responslblllty  and  knowledge  of  Improvement, 

see,  generally,  f§  473  et  seq.,  this  Supplement,  ante,  and  notes.     As  to 
Notice,  generally,  see  f  475,  this  Supplement,  ante,  and  notes. 

2  California.     See   §1184   Code   Civ.    Proc.,  as   amended   May    1,    1911 
(Stats,  and  Amdts.  1911,  pp.  1313,  et  seq.).    Notice  must  now  be  served 
upon  demand   of  owner. 

s  See  preceding  note. 

4  California.  See  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D. 
Co..  7  Cal.  App.  460,  462,  94  Pac.  Rep.  775. 

s  Kaunas.  See  Home  L.  &  S.  Co.  v.  School  Dist.  (Kan.),  115  Pac. 
Rep.  590;  Deatherage  v.  Henderson,  43  Kan.  684,  690,  23  Pac.  Rep. 
1052,  1054:  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac. 
Rep.  833,  837,  838  (calling  attention  to  the  difference  between  the 
California  statute  and  the  Kansas  statute). 

Oklahoma.  An  to  various  notices  prescribed  by  statute,  see  Jones 
v.  Balsley  (Okl.),  Ill  Pac.  Rep.  942;  s.  c.,  25  Okl.  344,  106  Pac.  Rep.  830. 

Washington.  Delivery  or  mailing  of  duplicate  statement  to  owner, 
under  S  1.  Laws  1909.  c.  45,  pp.  71,  72,  held  essential  to  lien,  whether 


197  LIABILITY.  AS   FIXED   BY   NOTICE.  88  550-553 

Additional  matter  to  foot-note  18. 6 

§  551.  Notice  to  owner  creating  personal  obligation. 
Where  the  statutory  notice  to  withhold  is  given  to  the  owner, 
it  is  his  duty  as  well  as  right,  or  that  of  the  person  repre- 
senting him,  in  making  payment  to  the  contractor  to  with- 
hold from  the  contractor  "sufficient  money  due  or  that  may 
become  due  to  such  contractor  or  other  person  to  answer 
such  claim.  "^ 

Additional  matter  to  foot-note  24.8 

§  552.     Notice  to  owner.     Garnishment. 
Additional  matter  to  foot-note  26.9 
Additional  matter  to  foot-note  30. 10 
Additional  matter  to  foot-note  32. n 

§  553.  Provision,  when  applicable.  The  notice  to  with- 
hold provided  for  by  the  statute12  need  not  be  served  upon 
the  contractor,  when  the  statute  does  not  require  the  same; 

owner  has  actual  notice  of  claim  or  not:  Finley  v.  Tagholm  (Wash.), 
113  Pac.  Rep.  1083,  111  Pac.  Rep.  782;  Spokane  G.  &  T.  Co.  v.  Lyttaker 
(Wash.),  109  Pac.  Rep.  316. 

But  such  delivery  or  mailing  Is  not  required  in  the  case  of  the 
owner's  claimant:  Rieflin  v.  Grafton  (Wash.),  115  Pac.  Rep.  851,  853; 
Finley  v.  Tagholm,  supra. 

The  purpose  of  this  notice  is  not  so  much  to  insure  the  right  of 
lien  as  to  protect  the  property  of  the  owner  against  dishonest  con- 
tractors: Spokane  G.  &  T.  Co.  v.  Lyttaker  (Wash.),  109  Pac.  Rep.  316, 
distinguishing  Strandell  v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106  and 
Cascade  L.  Co.  v.  Aetna  I.  Co.,  56  Wash.  503,  106  Pac.  Rep.  158. 

6  California.     See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  509, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

7  California.     Los  Angeles  P.   B.  Co.  v.   Los  Angeles  P.   B.   &   D.   Co., 
7  Cal.  App.  460,  462,  94  Pac.  Rep.  775. 

8  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.   &  D.   Co., 
7  Cal.  App.  460,  462,  94  Pac.  Rep.  775. 

See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  510,  97  Pac.  Rep. 
216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

9  California.      As    to    ordinary    garnishment    against    public    body    at 
instance  of  claimant:     See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App. 
505,  510,  97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

10  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.   &  D.  Co., 
7   Cal.   App.    460,    462,   94   Pac.   Rep.   775. 

11  California.      See   Goldtree   v.    City 'of   San   Diego,    8   Cal.   App.    505, 
510,  97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

12  California.     §  1184  Code  Civ.  Proc.,  as  it  stood  before  the  amend- 
ment of  1911   (Stats,  and  Amdts.  1911,  pp.  1313  et  seq.). 


§§  553-560 


MECHANICS'    LIENS  —  SUPPLEMENT. 


and  the  original  contractor,  it  has  been  said  is  the  only 
person  named  in  section  eleven  hundred  and  eighty-three 
of  the  Code  of  Civil  Procedure,  who  can  not  avail  himself 
of  the  provisions  of  the  statute  with  regard  to  the  notice  to 
withhold.13 

§  554.     General  rights  upon  service  of  notice. 
Additional  matter  to  foot-note  42.  14 

§  555.     Same.     Early  statutes. 

§  556.     Same.     Under  valid  contract,  generally.13 

t 

§  557.  Same.  Claim  of  lien  as  equivalent  of  notice  to 
owner.16 

§  558.     Same.    Valid  statutory  original  contrast. 
Additional  matter  to  foot-note  51.  17 
Additional  matter  to  foot-note  52.  18 

§  559.     Same.    Void  statutory  original  contract.19 
§  560.    Same.    Non-statutory  original  contract.20 

is  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.. 
7  Cal.  App.  460,  462,  94  Pac.  Rep.  775. 

14  California.  See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  512, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

is  California.  The  -Statutory  Original  Contract  was  abolished  by 
Amendment  of  May  1,  1911,  to  S  1183,  Code  Civ.  Proc.  (Stats,  and 
Amdts.  1911,  pp.  1313  et  seq.). 

See  H  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

is  California.  But  see  S  1184  Code  Civ.  Proc.,  as  amended  May  1. 
1911  (Stats,  and  Amdts.  1911,  pp.  1313,  et  seq.),  under  which  owner 
may  demand  that  notice  be  served  upon  him  and  Hen  will  be  lost  by 
failure  to  comply. 

IT  California.  Hubbard  v.  Lee,  6  Cal.  App.  602,  605,  92  Pac.  Rep.  744; 
s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528. 

is  California.  Hubbard  v.  Lee,  6  Cal.  App.  602,  605,  92  Pac.  Rep.  744; 
s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  628. 

is  California.  The  Statutory  Original  Contract  was  abolished  by 
Amendment  of  May  1,  1911,  to  S  1183,  Code  Civ.  Proc.  (Stats,  and 
Amdts.  1911,  pp.  1313  et  seq.). 

See  ${  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

20  See  preceding  note. 


199  LIABILITY   AS    FIXED    BY   NOTICE.  SS  561-564 

§  561.  Same.  Effect  of  notice  on  payments  already  made 
or  assigned.  Where  the  owner  is  served  by  the  sub-contrac- 
tor's material-man  with  the  proper  statutory  notice  to  with- 
hold payments  for  materials  -furnished  to  such  subcon- 
tractor, the  fact  that  the  contractor  was  not  notified  of  such 
claim  and  on  the  day  prior  to  the  notice  to  the  owner  such 
contractor  paid  to  the  subcontractor  all  that  was  due  to  him 
does  not  affect  the  lien  on  the  fund  by  garnishment  or  the 
lien  on  the  property  of  the  owner,  if  there  were  moneys  in 
the  hands  of  the  owner  due  to  the  contractor  under  the 
terms  of  the  contract  at  the  time  of  the  service  of  the  notice 
to  withhold.21 

Additional  matter  to  foot-note  64.22 

§  562.     Same.     Payment  by  note.23 

§  563.  Same.  Relation  to  provision  as  to  premature  pay- 
ments. 

Additional  matter  to  foot-note  71. 24 

§  564.  Same.  Service  of  notice  on  public  trustees.  The 
mechanics'  lien  law  of  the  California  code  is  the  statutory 
provision  made  by  the  legislature  in  obedience  to  the  consti- 
tutional mandate  of  section  fifteen,  and  prescribes  the  man- 
ner in  which  the  right  to  the  lien  in  each  particular  case  may 
be  declared  and  rendered  effective.  Two  methods  are  pro- 
vided for  giving  notice  of  claim  of  lien ;  one  by  recording 
against  the  property  (section  eleven  hundred  and  eighty- 
three),. and  the  other  by  notice  to  the  holder  of  the  fund 
which  has  been  earned  by  the  claimant's  labor  (section 
eleven  hundred  and  eighty-four).  The  former,  for  reasons 
of  public  policy,  can  not  be  enforced  against  a  public 
building  or  improvement,  but  no  such  objection  exists 

21  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7   Cal.   App.    460,    94   Pac.   Rep.    775. 

22  Colorado.    Rights  of  assignee  of  claim  against  own  or:    See  Hottel 
v.  Poudre  Valley  R.  Co.,  41  Colo.  370,   92  Pac.  Rep.  918,   919. 

Washington.     See  Strandell  v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106. 

23  See  §  32,  this  Supplement,  ante. 

24  Architect's  certificate:    See  §§  239  et  seq.,  this  Supplement,  ante. 


§  564  MECHANICS'    LIENS — SUPPLEMENT.  200 

as  to  the  latter.  It  has  sometimes  been  claimed  that  both 
of  these  methods  were  intended  by  the  legislature  to 
apply  only  to  private  owners.  To  so  construe  the  enact- 
ment would  be  to  hold  that  the  legislature  has  failed 
to  carry  out  the  command  to  provide  means  to  ren- 
der effectual  the  right  created  by  the  constitution ;  that 
it  has  only  partially  complied  with  the  requirement  of  the 
section.  The  Bond  Act  of  1897  (Stats.  1897,  p.  201),  does 
not  recognize  a  lien  or  provide  for  the  speedy  and  efficient 
enforcement  of  one.  As  a  means  of  securing  the  payment 
of  the  claims  of  laborers  employed  upon  public  work  it  is 
merely  cumulative  and  does  not  exclude  or  do  away  with 
the  constitutional  lien.  Section  eleven  hundred  and  eighty- 
four  furnishes  the  only  available  method  by  which  the 
laborer  can  obtain  the  benefit  of  his  lien  upon  public  work. 
It  is  apparently  upon  this  principle  that  the  decisions  in 
Bates  v.  Santa  Barbara,25  and  the  cases  relying  thereon, 
were  decided.26 

In  an  action  founded  upon  the  statutory  notice  to  with- 
hold payments,  at  the  instance  of  subclaimants,  given  to 
a  municipality,  the  latter 's  only  interest  in  the  litigation 
is  that  of  a  stakeholder,  and  no  costs  of  the  litigation  can  be 
imposed  upon  it.27 

Additional  matter  to  foot-note  72.28 


25  Bates  v.  County  of  Santa  Barbara.  90  Cal.  543,  27  Pac.  Rep.  438. 
£6  California.     Goldtree   v.   City   of   San    Diego,   8   Cal.   App.    505,   509. 
97  Pac.  Rep.  216;  n.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

27  California.     Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  511,  97 
Pac.  Rep.   216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218   (distinguishing 
between  the  scope  of  powers  of  a  school  district  and  those  of  a  city; 
and  holding  that  Bates  v.  County  of  Santa  Barbara,  90  Cal.  543,  27  Pac. 
Rep.  438,  in  so  far  as  there  is  any  inconsistency  between  It  and  Skelly 
v.  School  Dlst.,  103  Cal.  659,  37  Pac.  Rep.  643,  is  more  in  accord  with  the 
spirit  and  intention  of  the  constitutional  provision  and  the  more  recent 
declarations  of  the  Supreme  Court). 

28  California.     See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  509, 
97  Pac.  Rep.  216;  s.  c.f  8  Cal.  App.  512.  97  Pac.  Rep.  218. 

Idaho.  State  may  be  liable  upon  contract  to  withhold  moneys  from 
contractor  for  materials  furnished  for  public  contract;  although  no 
execution  can  issue  against  the  state:  Rathbun  v.  State,  15  Idaho  273, 
97  Pac.  Rep.  335,  837. 


201  LIABILITY    AS    FIXED    BY   NOTICE.  88  564-569 

Additional  matter  to  foot-note  74.29 
Additional  matter  to  foot-note  78.30 

§  565.     Time  of  giving  notice. 
Additional  matter  to  foot-note  79. 31 
Additional  matter  to  foot-note  81. 32 

§  566.    Joint  contractors.     Apportionment. 
§  567.    Action  on  notice.33 

§  568.    Form  and  contents  of  notice.     Construction. 

Additional  matter  to  foot-note  85. 34 

§  569.     Same.     Effect  of  several  notices  served. 

As  to  lien  against  state  or  federal  property:  See  Nelson  Bennett 
Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  791,  92 
Pac.  Rep.  980. 

29  Colorado.     Public  authorities  may  properly  require  contractor  on 
public  works  to  stipulate  to  pay  labor  and  material  bills:     State  Board 
of  Agriculture  v.  Dimick,   46  Colo.    609,   105   Pac.   Rep.    1114.     See  City 
and   County   of   Denver  v.   Hindry,    40    Colo.    42,    90    Pac.   Rep.    1028,    11 
L.  R.  A.   (N.  S.),  1028;  International  Trust  Co.  v.  Keefe  Mfg.  &  I.  Co., 
40  Colo.  440,   91  Pac.  Rep.   915. 

30  Washington.   Duplicate  statement  required  by  Laws  1909,  c.  45,  §  1, 
is  not  applicable   with   regard   to   bond  and  contract  for  public  work, 
under  Laws  1909,  c.  207:  Gate  City  L.  Co.  v.  City  of  Montesano  (Wash.), 
Ill  Pac.  Rep.   799. 

See,  also,  as  to  latter  statute:  Cascade  L.  Co.  v.  Aetna  I.  Co.,  56 
Wash.  503,  106  Pac.  Rep.  158;  Minneapolis  S.  &  M.  Co.  v.  Aetna  I  Co., 
56  Wash.  699,  106  Pac.  Rep.  160;  Strandell  v.  Moran,  49  Wash.  533, 
95  Pac.  Rep.  1106. 

si  California.  See  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D. 
Co.,  7  Cal.  App.  460,  94  Pac.  Rep.  775. 

32  Reasonable  time  for  giving  notice: 

Kansas.  See  Home  L.  &  S.  Co.  v.  School  Dist.  (Kan.),  115  Pac.  Rep. 
590. 

Washington.  See  Spokane  G.  &  T.  Co.  v.  Lyttaker  (Wash.),  109  Pac. 
Rep.  316.  See  Finley  v.  Tagholm  (Wash.),  Ill  Pac.  Rep.  782;  Strandell 
v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106;  Cascade  L.  Co.  v.  Aetna  I. 
Co.,  56  Wash.  503,  106  Pac.  Rep.  158. 

33  California.     See    §1184   Code   Civ.   Proc.,   as   amended   May    1,    1911 
(Stats,  and  Amdts.  1911,  pp.  1313  et  seq.). 

34  Washington.     See  Strandell  v.  Moran,   49  Wash.   533,   95   Pac.  Rep. 
1106. 


§§  570,  571         MECHANICS'    LIENS— SUPPLEMENT.  202 

§  570.     Same.    Statutory  requirements  of  notice. 
Additional  matter  to  foot-note  92.35 

§  571.    Same.    Sufficiency  of  notice.36 

35  WMhlnvton.     Signature!    See  Strandell  v.  Moran,  49  Wash.  533.  95 
Pac.  Rep.  1106. 

3«  Compare  "Claim,"  §f  375  et  seq.,  this  Supplement,  ante. 


203  AGENCY.  §§  572-574 


CHAPTER  XXVIII. 
AGENCY. 

§  572.  General  principles.  Actual  and  ostensible  agency. 
Contracting  architect,  upon  a  percentage  basis,  owner  pay- 
ing all  bills,  is  the  common  law  agent  of  the  owner.1 

Additional  matter  to  foot-note  3.2 

Additional  matter  to  foot-note  4.3 

§  573.    Agency  by  statutory  estoppel.4 

§  574.     Same.    Purpose. 
Additional  matter  to  foot-note  7.5 


1  California.      Loma  Prieta   L.   Co.   v.   Hinton,    12   Cal.    App.    766,   768, 
108  Pac.  Rep.  528. 

Agency  between  husband  and  wife;  see  following  cases: 

Federal.     Healey  I.  M.  Co.  v.  Green   (C.  C.,  N.  C.),  181  Fed.  Rep.  890. 

Idaho.     Larson  v.  Carter,  14  Idaho  511,  94  Pac.  Rep.  825,  827. 

Kansas.  Chicago  L.  &  C.  Co.  v.  Washington,  80  Kan.  613,  103  Pac. 
Rep.  80,  81;  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac.  Rep. 
179,  180,  181;  Sutherlin  v.  Chesney  (Kan.  Sup.),  116  Pac.  Rep.  254; 
Hayes  v.  Funk,  79  Kan.  416,  99  Pac.  Rep.  1131;  Badger  L.  Co.  v.  Martin 
(Kan.),  112  Pac.  Rep.  104. 

Oklahoma.     Bloch  v.  Pearson,  19  Okl.  422,  91  Pac.  Rep.  714. 

2  Oregon.     See  Equitable  S.   &  L.  Assoc.  v.  Hewitt    (Oreg.),   106  Pac. 
Rep.  447,  450. 

Washington.  Actual  agency  of  builder:  See  Pennsylvania  C.  Co.  v. 
Washington  P.  C.  Co.  (Wash.),  116  Pac.  Rep.  284.. 

3  Washington.      Authority  of   common    law   agent    of   owner    to    con- 
struct: Driver  v.  Galland  (Wash.),  109  Pac.  Rep.  593,  594. 

4  California.     See  Kast  v.  Miller  &  Lux  (Cal.  Sup.),  115  Pac.  Rep.  932. 
Colorado.     Proof  of  facts  tending  to  show  agency:    See  M.  McCreery 

v.  Morrison  (Colo.),  105  Pac.  Rep.  876,  878. 

Oregon.  Compare  Equitable  S.  &  L.  Assoc.  (Oreg.),  106  Pac.  Rep. 
447,  450. 

5  California.     Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.,  7 
Cal.  App.  460,  461,  94  Pac.  Rep.  775.     See  Lucas  v.  Gobbi,  10  Cal.  App. 
648,  650,  103  Pac.  Rep.  157. 

Idaho.     See  Shaw  v.  Johnston,  17  Idaho  676,  107  Pac.  Rep.  399. 

Montana.  See  Lane  v.  Lane  Potter  L.  Co.,  40  Mont.  541,  107  Pac. 
Rep.  898. 

Oklahoma.  See  Christy  v.  Union  O.  &  G.  Co.  (Okl.),  114  Pac.  Rep. 
740;  Shirley  v.  Union  O.  &  G.  Co.  (Okl.),  114  Pac.  Rep.  742. 

Oregon.  Power  to  construct,  of  mere  agent  to  procure  loan:  See 
Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac.  Rep.  447,  450.  See 


§§  574-579          MECHANICS'    LIENS — SUPPLEMENT.  204 

Additional  matter  to  foot-note  8.6 
§  575.     Same.   'Statutory  provision." 
§  576.    Same.    When  contract  is  void.8 

§  577.     Person  in  possession  as  agent  of  owner. 
Additional  matter  to  foot-note  12.9 
Additional  matter  to  foot-note  13. 10 

§  578.     Same.    Person  working  mine. 
Additional  matter  to  foot-note  16. n 

§  579.    Architect  as  agent. 
Additional  matter  to  foot-note  17. 12 

Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  64  Oreg.  71,  100  Pac.  Rep. 
1,  102  Pac.  Rep.  303. 

Utah.    See  Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Rep.  Ill,  113,  114. 

Washington.  Compare  O'Brien  v.  Hopgood,  49  Wash.  395,  95  Pac. 
Rep.  489. 

o  Idaho.  Contractor  as  special  agent  of  owner:  See  Valley  L.  &  Mfg. 
Co.  v.  Nickerson,  13  Idaho  682,  93  Pac.  Rep.  24,  27. 

KIIHMIIM.  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556,  109  Pac.  Rep. 
179,  180,  181. 

iiiisiiand  as  common  law  agent  of  wife:  See  Sutherlin  v.  Chesney 
(Kan.  Sup.),  116  Pac.  Rep.  254. 

Utah.    See  Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Rep.  Ill,  113. 

T  California.  See  §1183  Code  Civ.  Proc.,  as  amended  May  1,  1911 
(Stats,  and  Amdts.  1911,  pp.  1313  et  seq.). 

s  California.  The  Statutory  Original  Contract  was  abolished  by 
Amendment  of  May  1,  1911,  to  S  1183,  Code  Civ.  Proc.  (Stats,  and  Amdts. 
1911,  pp.  1313  et  seq.). 

See   51  258,   269,   274,   281,   288   and   328.   this  Supplement,  ante. 

•  California.  See  Western  L.  &  M.  Co.  v.  Merchants  A.  Co.,  13  Cal. 
App.  4,  108  Pac.  Rep.  891,  894. 

Oregon.  Claimant  must  connect  himself  with  owner  of  building 
or  his  agent:  Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.  1, 
100  Pac.  Rep.  1,  102  Pac.  Rep.  303;  Equitable  S.  &  L.  Assoc.  v.  Hewitt 
(Oreg.),  106  Pac.  Rep.  447,  450;  Crane  Co.  v.  Erie  H.  Co.  (Oreg.),  112 
Pac.  Rep.  430. 

Utah.  See  Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Rep.  Ill,  113, 
114. 

Washington.  Authority  of  common  law  agent  of  owner  to  con- 
struct: See  Driver  v.  Galland  (Wash.),  109  Pac.  Rep.  593,  594. 

10  Oregon.     See  Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac. 
Rep.  447,  450;  Crane  Co.  v.  Erie  H.  Co.   (Oreg.),  112  Pac.  Rep.  430. 

11  Utah.      Power   to    bind   other   membem    of    mining   partnership    as 
agent:     See  Bentley  v.  Brossard,  33  Utah  396,  94  Pac.  Rep.  736,  744. 

12  Architect  as  agent  of  owner: 


205  AGENCY.  §§  580-584 

§  580.    Presumption  of  agency  raised. 
Additional  matter  to  foot-note  19. 13 

§  581.     Undue  extension  to  statutory  agency  of  rules  ap- 
plicable only  to  common-law  agency. 

§  582.    Personal  liability  of  agent. 
Additional  matter  to  foot-note  25. 14 

§  583.    Agency  to  receive  notice  of  claims  of  subclaimants. 

Additional  matter  to  foot-note  28. 15 

§  584.     Principal  bound  by  notice  to  agent. 

Additional  matter  to  foot-note  29. 16 


California.  See  Seebach  v.  Kuhn,  9  Cal.  App.  485,  490,  99  Pac.  Rep. 
723. 

Architect  as  common  law  agent  of  owner:  See  Loma  Prieta  L.  Co. 
v.  Hinton,  12  Cal.  App.  766,  768,  108  Pac.  Rep.  528.  See  §  572,  this 
Supplement,  ante. 

Federal.     See  Fuller  v.  Young  &  Co.,  126  Fed.  Rep.  343,  61  C.  C.  A.  245. 

Washington.    See  Camp  v.  Neufelder,  49  Wash.  426,  95  Pac.  Rep.  640. 

Architect  giving  notice  to  surety  for  owner:  See  Martin  v.  Empire 
State  S.  Co.,  53  Wash.  290,  101  Pac.  Rep.  876. 

is  California.  Secretary  of  corporation  am  its  agent:  See  Danald- 
son  v.  Orchard  C.  O.  Co.,  6  Cal.  App.  641,  643,  92  Pac.  Rep.  1046;  Eells 
v.  Gray  Bros.  C.  R.  Co.,  13  Cal.  App.  33,  108  Pac.  Rep.  735. 

President  as  agent:  See  Black  v.  Harrison  H.  Co.,  155  Cal.  121,  99 
Pac.  Rep.  494. 

Idaho.  Acts  of  officers  as  to  sales  of  material:  See  Valley  L.  Co. 
v.  McGilvery,  16  Idaho  338,  101  Pac.  Rep.  94. 

Kansas.  Acts  of  officers  prohibited  by  by-laws:  See  Hoffman  v. 
Farmer's  Co-op.  S.  Assoc.,  78  Kan.  561,  97  Pac.  Rep.  440,  443. 

Oregon.  President  of  corporation  as  agent:  See  Harding  v.  Oregon- 
Idaho  Co.  (Oreg.),  110  Pac.  Rep.  412,  415. 

14  Oregon.     Peck  v.  Voget    (Oreg.),   108  Pac.  Rep.   120. 

is  California.  See  Pacific  L.  Co.  v.  Wilson,  6  Cal.  App.  561,  562,  92 
Pac.  Rep.  654. 

16  California.  See  Pacific  L.  Co.  v.  Wilson,  6  Cal.  App.  561,  562,  92 
Pac.  Rep.  654;  John  R.  Gentle  Co.  v.  Britton,  158  Cal.  328,  332,  111 
Pac.  Rep.  9.  See  Western  L.  &  M.  Co.  v.  Merchants  A.  Co.,  13  Cal. 
App.  4,  108  Pac.  Rep.  891,  894. 

Oklahoma.  See  Hale  v.  Van  Buren  &  M.  Co.  (Okl.),  103  Pac.  Rep. 
1026. 


§§  585-588          MECHANICS'    LIENS — SUPPLEMENT.  206 


CHAPTER  XXIX. 

THIRD  PERSONS. 

§  585.     Scope  of  discussion. l 

§  586.     Purchasers  and  other  lien-holders. 
Additional  matter  to  foot-note  I.2 
Additional  matter  to  foot-note  3.3 

§  587.    Same.    Defective  claim  of  lien  as  notice  to  bona 
fide  third  parties.4 

§  588.     Assignees.    Assignment  of  inchoate  right  to  lien. 
Additional  matter  to  foot-note  5.3 
Additional  matter  to  foot-note  6.6 
Additional  matter  to  foot-note  8." 


1  An  to  right*  of  owner*  of  abutting  property,  see   §  523,   this   Sup- 
plement, ante. 

An  to  right*  of  third  perMonn  arising  out  of  negligence  of  Inde- 
pendent contractor,  see  §  508,  this  Supplement,  ante. 

Am  to  execntom  and  administrators,  see  §  200,  this  Supplement,  ante. 

An  to  presentation  of  claims  against  estate  of  owners  See  Re  Hin- 
cheon's  Estate  (Cal.  Sup.),  116  Pac.  Rep.  47. 

2  See  Priorities,  §  487,  et  seq.,  this  Supplement,  ante. 

3  Washington.     An  to  right*  of  bona  fide  purchaser:     See  Seattle  L. 
Co.  v.  Cutler   (Wash.),   116  Pac.   Rep.  1. 

A*  to  condemnation  proceedings:  See  North  Coast  Ry.  Co.  v.  Hess, 
56  Wash.  335,  105  Pac.  Rep.  853,  855. 

4  See  IS  365  and  412,  this  Supplement,  ante. 

5  Washington.      Assignment:    See,   generally,   Strandell   v.    Moran,    49 
Wash.    533. 

e  California.  See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505, 
512,  97  Pac.  Rep.  216;  a.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

Oregon.  Alderson  v.  Lee,  52  Oreg.  92,  96  Pac.  Rep.  234,  237  Hogging 
Hen — attorney  as  agent  for  both  assignor  and  assignee  of  lien  claim 
in  preparing  and  filing  claim  of  lien  and  assignment). 

7  Oregon.  Lien  may  also  be  foreclosed  when  it  is  agreed  that 
assignment  shall  not  become  effective  or  be  delivered  until  lien  is 
perfected:  Alderson  v.  Lee,  52  Oreg.  92,  96  Pac.  Rep.  234,  237  (logging, 
lien). 


207  THIRD    PERSONS.  §§  589-597 

§  589.     Same.    Formalities  of  assignment. 

Additional  matter  to  foot-note  9.8 

§  590.     Same.    Unaccepted  order. 

§  591.     Same.    Assignment  of  debt  necessary.9 

§  592.     Same.     Separate  assignments  of  debt  and  security. 
Additional  matter  to  foot-note  14. 10 

§  593.  Same.  Splitting  demands.11 
§  594.  Same.  Notice  of  assignment.12 

§  595.     Same.    General  rights  of  assignee. 

Additional  matter  to  foot-note  20. 13 
Additional  matter  to  foot-note  21. 14 
Additional  matter  to  foot-note  23. 15 

§  596.     Same.     Conditional  acceptance. 

§  597.     Same.    Defenses    arising    subsequent    to    assign- 
ment.16 


8  Arizona.  Construction  of  assignment  of  lien:  Bank  of  Arizona  v. 
Thomas  Haverty  Co.  (Ariz.),  115  Pac.  Rep.  73. 

Oregon.  Formalities  of  assignment  of  logging  lien:  Alderson  v. 
Lee,  52  Oreg.  92,  96  Pac.  Rep.  234,  237  (also  construction  of  assign- 
ment). 

»  See  §  20,  this  Supplement,  ante. 

10  California.     Compare   Goldtree  v.   City   of   San   Diego,   8   Cal.   App. 
505,  512,  97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

11  See  §§  533,  this  Supplement,  ante.     Strike  from  note  17  "See  §  593, 
ante." 

12  As    to   assignability,    see    §20,    this   Supplement,   ante. 

is  California.     O'Brien  v.  Garibaldi  (Cal.  App.),  115  Pac.  Rep.  249. 

Colorado.  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac. 
Rep.  918,  919. 

i*  Colorado.  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac. 
Rep.  918,  919. 

is  Colorado.  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac. 
Rep.  918,  919. 

ic  See  §§  515  et  seq.,  this  Supplement,  ante. 


§§  598-601          MECHANICS'    LIENS — SUPPLEMENT.  208 

§  598.  Same.  Assignment  to  surety  on  contractor's 
bond.17 

§  599.    Same.     Insolvency.     Bankruptcy. 
Additional  matter  to  foot-note  30. 18 

§  600.     Same.    Premature  payments.19 

§  601.  General  creditors.  Claimants  losing  lien.  When 
neither  the  owner  nor  contractor  raises  any  objection  to  the 
disposition  of  the  balance  of  the  fund,  after  the  claims  of 
lien  holders  are  disposed  of,  an  order  or  judgment  that  the 
balance  of  the  fund  be  paid  to  the  claimants  who  have  not 
established  their  liens,  if  anything,  is  too  favorable  to  them; 
and  they  can  not  be  heard  to  object  to  such  order  on  appeal, 
or  to  attack  the  judgment  giving  a  lien  to  those  who  have 
established  the  same.20 

Additional  matter  to  foot-note  36.21 

Additional  matter  to  foot-note  37.22 

Additional  matter  to  foot-note  38.23 

Additional  matter  to  foot-note  39.24 


IT  See  "Sureties,"   if  605  et  seq.,  this  Supplement,  ante. 

is  California.  Discharge  In  bankruptcy  defense  against  personal 
liability  but  not  affecting  lien:  See  Jensen  v.  Dorr  (Cal.  Sup.).  116 
Pac.  Rep.  553,  556;  s.  c.,  157  Cal.  437,  108  Pac.  Rep.  320  (on  vessel). 
Compare,  also  Blood  v.  Munn,  155  Cal.  228,  100  Pac.  Rep.  694. 

Colorado.  Bankruptcy,  generally*  See  Hawthorne  v.  Hendrie  & 
Bolthoff  Mfg.  &  S.  Co.  (Colo.),  116  Pac.  Rep.  122,  124. 

Federal.  Mechanic*'  lien*  colluMlvely  obtained  unenforceable  against 
general  creditors  In  bankruptcy  proceedings:  In  re  Kyte  (D.  C.,  Pa.), 
182  Fed.  Rep.  166.  169. 

IB  See  SS  266,   563,  this  Supplement,  ante. 

20  California.     Stockton  L.  Co.  v.  Schuler,  155  Cal.   411,  414,   101   Pac. 
Rep.    307. 

21  California.     Stockton  L.  Co.  v.  Schuler,   155  Cal.  411.  414,   101  Pac. 
Rep.   307. 

California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  522, 
97  Pac.  Rep.  414,  420. 

22  California.   See  Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  4%3,  101  Pac. 
Rep.    307. 

23  California.     Stockton  L.  Co.  v.  Schuler,   155  Cal.  411,  413,  101   Pac. 
Rep.   307. 

24  California.     Stockton  L.  Co.  v.  Schuler,  155  Cal.  411,  413,   101   Pac. 
Rep.    307. 


209  THIRD    PERSONS.  §£  601-604 

Additional  matter  to  foot-note  40.25 

§  602.     Same.     Attachment  or  process.     Materials.26 

§  603.  Same.  Garnishment.  Where  the  original  con- 
tractor dies  after  the  levy  of  execution  by  way  of  garnish- 
ment against  the  owner  on  behalf  of  subclaimants  recovering 
a  personal  judgment  against  the  contractor,  the  failure  of 
claimants  to  present  their  claims  to  the  administrator  or 
executor  of  the  estate  of  the  contractor  does  not  affect 
their  right  to  reduce  to  possession  the  debt  due  from  the 
owner  to  the  original  contractor.27 

Additional  matter  to  foot-note  42.28 

§  604.  Mortgages.  Obligation  to  advance  moneys  for 
construction.  The  holder  of  a  mechanic's  lien  upon  property 
has  no  claim  upon  the  insurance  effected  by  the  owner  and 
assigned  to  the  mortgagee  after  the  loss.29 

Additional  matter  to  foot-note  45. 30 

Additional  matter  to  foot-note  47.31 


25  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Gal.  App.  514,   522, 
97  Pac.   Rep.   414,   420. 

26  See  §§  645  et  seq.,  this  Supplement,  post. 

27  California.     Nordstrom   v.   Corona  City   W.    Co.,    155   Cal.    206,    213, 
100   Pac.   Rep.    242. 

28  California.     Garnishment :      See  Nordstrom  v.   Corona  City  W.  Co., 
155  Cal.  206,  214,  100  Pac.  Rep.   242.     See,  also,   §  521,  this  Supplement, 
ante. 

29  Federal.     Healey   I.  M.   Co.   v.   Green    (C.   C.,   N.  C.),   181   Fed.   Rep. 
890,   895. 

Maine.     See  Donnell  v.  Donnell,  86  Me.  518,  30  Atl.  Rep.  67. 

North  Carolina.  See  Stamps  v.  Insurance  Co.,  77  N.  C.  209,  29  Am. 
Rep.  443. 

Texas.  See  Galyon  v.  Ketchen,  85  Tenn.  55,  1  S.  W.  Rep.  508 
(assignment. made  before  lienor's  bill  was  filed). 

so  Recovery  by  mortgagee  of  Hen  claims  paid  off  under  terms  of 
mortgage,  see  the  following  cases: 

Indiana.     Standiford  v.  Shidler,  26  Ind.  App.  496,   60  N.  E.  Rep.   168. 

Minnesota.     Price  v.  Doyle,  34  Minn.  400,  26  N.  W.  Rep.   14. 

Oregon.  Equitable  S.  &  L.  Assoc.  v.  Hewett  (Oreg.),  106  Pac.  Rep. 
447,  450. 

31  Arizona.  Compare  Bank  of  Arizona  v.  Thomas  Haverty  Co. 
(Ariz.),  115  Pac.  Rep.  73,  75. 


Bloom's  Sup. — 14 


§  604a  MECHANICS'    LIENS— SUPPLEMENT.  210 

ji  604a.  Presentation  of  claim  to  executor  or  adminis- 
trator of  owner.  As  a  general  rule,  claimants  having  a  lien 
upon  the  property  of  the  owner  for  labor  bestowed  or  ma- 
terials furnished  need  not  present  their  claims  to  the  exec- 
utor or  administrator  of  the  owner  in  order  to  foreclose 
their  liens;  but  if  the  owner's  claimant  desires  to  enforce  a 
personal  claim  against  the  estate  for  any  deficiency,  such 
presentation  is  generally  required.32 

32  California.     In  re  Hincheon's  Estate   (Cal.  Sup.),  116  Pac.  Rep.  47. 
Oregon.     Brown  v.  Truax   (Oregr-),  115  Pac.  Rep.  597. 
South  Dakota.    Fish  v.  De  Laray,  8  So.  Dak.  320,  66  N.  W.  Rep.  465. 
Washington.     See  Casey  v.  Ault.  4  Wash.   167,  29  Pac.  Rep.   1048. 


THIRD    PERSONS—  SURETIES. 


gQ5    606 


CHAPTER  XXX. 

THIRD  PERSONS  (CONTINUED).     SURETIES. 

§  605.     Scope  of  chapter. 
Additional  matter  to  foot-note  I.1 

§  606.     Statutory  requirement  of  contractor's  bond. 
Additional  matter  to  foot-note  3.2 


1  Kansas.     Action  to  recover  on  bond  under  Gen.   Stats.   1909,   §  6255 
(Code  Civ.   Proc.,  §660):   See  Shores  v.  United  S.  Co.    (Kan.),   114  Pac. 
Rep.    1062. 

Washington.  Time  of  commencing  suit:  See  Monro  v.  National  S. 
Co.,  47  Wash.  488,  92  Pac.  Rep.  280;  Martin  v.  Empire  State  S.  Co., 
53  Wash.  290,  101  Pac.  Rep.  876. 

Special  limitation  as  to  time  of  commencing  action  on  bond,  citing1 
Washington  cases  in  note  of  Treatise  and  following1  the  doctrine  set 
out  in  Oregon  note  of  Ausplund  v.  Aetna  I.  Co.,  47  Oreg.  10,  81  Pac. 
Rep.  577,  but  citing  other  cases:  See  Sheard  v.  United  States  F.  &  G. 
Co.,  58  Wash.  29,  107  Pac.  Rep.  1024,  arising  out  of  liens  foreclosed 
in  Jensen  v.  Sheard,  49  Wash.  593,  96  Pac.  Rep.  2.  See,  also,  Young 
Men's  Christian  Assoc.  v.  Gibson,  58  Wash.  307,  108  Pac.  Rep.  766,  768. 

A  corporation  lias  no  power  to  enter  into  a  contract  of  suretyship 
or  guaranty,  unless  the  power  is  expressly  conferred  by  its  charter, 
or  unless  such  a  contract  is  reasonably  necessary,  or  is  usual,  in  the 
conduct  of  its  business:  Spencer  v.  Alki  P.  T.  Co.,  53  Wash.  77, 
101  Pac.  Rep.  509,  512;  Donohue-Kelly  B.  Co.  v.  Savings  Bank,  13 
Wash.  407,  43  Pac.  Rep.  359,  942,  52  Am.  St.  Rep.  57.  See,  also,  Wash- 
ington M.  Co.  v.  Sprague  L.  Co.,  19  Wash.  165,  52  Pac.  Rep.  1067. 

2  California.     See     bond     required    by     §1183,    Code     Civ.     Proc.,  <as 
amended  Stats.  &  Amdts.  1911,  pp.  1313,  et  seq. 

Colorado.  Where  a  bond  Is  not  given  for  the  benefit  of  those  fur- 
nishing materials  for  or  labor  upon  a  building,  but  is  conditioned  to 
secure  the  faithful  performance  of  the  contract  and  the  payment  of 
all  bills  by  the  contractor  in  connection  with  the  erection  of  the 
building,  but  the  contract  itself  does  not  provide  for  the  payment 
of  such  bills  by  the  contractor,  the  sureties  on  the  bond  are  not 
liable  for  such  non-payment  by  the  contractor,  but  otherwise,  If  the 
bond  is  given  for  the  benefit  of  such  laborers  and  material-men: 
State  Board  of  Agriculture  v.  Dimick,  46  Colo.  609,  105  Pac.  Rep.  1114. 
See  §  626,  this  Supplement,  post,  note. 

Bond  to  discharge  liens: 

Kansas.  Where  the  statute  provides  that  the  bond  shall  be  ''con- 
ditioned for  the  payment  of  all  claims  which  might  be  the  basis  of 
liens,"  and  the  bond  given  by  the  contractor  to  the  owner,  purporting 
to  be  under  the  mechanics'  lien  law,  secures  only  "claims  arising  from 
the  furnishing  of  labor  and  materials  for  the  purpose  hereinbefore 
recited,"  which  purpose  was  limited  to  the  erection  of  one  certain 
building,  or  the  bond  is  for  a  penal  sum  less  than  the  amount  re- 


§§  607-611  MECHANICS'    LIENS— SUPPLEMENT.  212 

§  607.     Same.    Application  of  provision.3 

§  608.    Statutory  bond.    Formalities.3 
Additional  matter  to  foot-note  6.4 

§  609.     Same.     Statutory  bond  void.5 

§  610.     Same.     Contract  void.    Bond  valid. 
Additional  matter  to  foot-note  10.° 
Additional  matter  to  foot-note  II.7 

§  611.    Same.    Liability  on  statutory  bond.8 

quired  by  the  statute,  for  instance,  "In  a  sum  not  less  than  the  con- 
tract price,"  the  bond  is  insufficient  to  discharge  the  claimants'  Hens: 
Deatherage  L.  Co.  v.  Miles  (Kan.),  116  Pac.  Rep.  505. 

liixoii . -in  Nuretlea  on  Matutory  bond  to  releane  llen»t  See  Deather- 
age L.  Co.  v.  Miles  (Kan.),  116  Pac.  Rep.  505. 

Oklahoma.  DeBnltlon  of  "Inure":  To  take  or  have  effect;  to  serve 
to  the  use,  benefit  or  advantage  of  a  person:  Mean  v.  Callison  (Okl.), 
116  Pac.  Rep.  195. 

3  California.     See    {1183,   Code   Civ.    Proc.,    as   amended   May    1,    1911 
(Stats.  &  Amdts.   1911,  pp.   1313,  et  seq.). 

4  Montana.      Distinction    exliita    between    xtatntory    undertaking    and 
•tatutory  bond,  consisting  chiefly  in  the  requirement  that  the  principal 
must   be   a   party    to   the   former;    while    the   person    in    whose   behalf 
the  latter  is  executed,  need  not  be  a  party  to  it;  and  upon  the  ques- 
tion  of   the   liability   of   sureties   upon    an    official    bond    not   signed    by 
the  principal,  the  authorities  are  in  conflict   (discussing  two  lines  of 
cases):     Deer   Lodge   County    v.    United   States   F.    &    G.    Co.    (Mont.). 
112  Pac.  Rep.  1060. 

Oklahoma.  Statutory  bond  to  prevent  attachment  of  Menu  not 
signed  by  principal  but  signed  by  two  sureties,  when  the  name  of  the 
principal  appears  In  the  body  of  the  bond  complies  with  {  4829,  Wil- 
son's Rev.  &  Ann.  Stats.  1903,  and  is  valid  against  the  sureties: 
Daman  v.  Chamberlain  (Okl.),  110  Pac.  Rep.  1056.  Compare  Clark 
v.  Bank  of  Hennessey,  14  Okl.  572,  79  Pac.  Rep.  217.  See  {  606,  this 
Supplement,  ante,  note. 

3  California.  See  {1183,  Code  Civ.  Proc.,  as  amended  May  1,  1911 
(Stats.  &  Am. Its.  1911,  pp.  1313,  et  seq.),  as  to  statutory  bond,  to  be 
filed  with  original  contract. 

o  California.  See  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  860; 
s.  c.,  9  Cal.  App.  491.  99  Pac.  Rep.  856;  s.  c.  (Cal.  App.),  Ill  Pac.  Rep. 
760;  s.  c.,  sub  nom.  Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 
See  preceding  note. 

7  California.  See  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  860; 
s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423.  See  note  5,  this  sec- 
tion, ante. 

s  California.  See  {1183,  Code  Civ.  Proc.,  as  amended  May  1.  1911 
(Stats.  &  Amdts.  1911,  pp.  1313,  et  seq.). 


213  THIRD    PERS©NS — SURETIES.  SS  612-614 

§  612.  Same.  Statutory  bond,  when  enforceable  as  a 
common-law  obligation.9 

§  613.     Common-law  bonds.    Formalities. 
Additional  matter  to  foot-note  14. 10 
Additional  matter  to  foot-note  15.11 

§614.  General  rule  of  surety's  liability.  It  is  well-settled 
law  that  a  surety  may  stand  upon  the  strict  letter  of  his 
bond,  and  that  where  the  principal  has,  without  the  consent 
of  the  surety,  materially  violated  the  terms  of  the  agreement 
for  the  performance  of  which  the  surety  stands  sponsor,  the 
latter  is  exonerated  from  all  liability  upon  his  bond.  This 
principle  has  been  many  times  .applied  where  the  surety  has 


o  California.  See  §1183,  Code  Civ.  Proc.,  as  amended  May  1,  1911 
(Stats.  &  Amdts.  1911,  pp.  1313,  et  seq.). 

10  See   §  608,   this   Supplement,  ante,  note. 

Washington. — A  bond  Is  an  Instrument  under  seal,  and  the  common 
law  rule  that  a  seal  imports  a  consideration  still  obtains  in  this  state, 
notwithstanding  the  statute  abolishing  the  use  of  private  seals  (Bal- 
llng-er's  Ann.  Codes  &  St.,  §  4523):  Monro  v.  National  S.  Co.,  47  Wash. 
488,  92  Pac.  Rep.  280;  Considine  v.  Gallagher,  31  Wash.  669,  72  Pac. 
Rep.  469. 

This  rule  is  a  positive  rule  of  law  and  not  a  mere  rule  of  procedure: 
Monro  v.  National  S.  Co.,  47  Wash.  488,  92  Pac.  Rep.  280. 

11  Idaho.      Where  a  building  contract  is  signed  by  the  original  con- 
tractor, and  is  also  signed  by   others,  no  mention   being  made   of   the 
names  of  the  others  or  of  their  liability,  in  the  body  of  the  contract, 
and  it   is  subsequently  signed   by  the  owner,   the  others  are  liable  as 
sureties:     Sanders    v.    'Keller    (Idaho),    111    Pac.    Rep.    350.     See,    also, 
Thompson   v.   Coffman,    15   Oreg.    631,    16    Pac.    Rep.    713;    Neil    v.    Mor- 
gan, 28  111.  524;  Holmes  v.  State,  17  Neb.  73,   22  N.  W.  Rep.   232;  Leith 
v.  Bush,  61  Pa.  395.     See,  also,  Washington  note,  this  section,  post. 

Washington.  The  mere  subscription  of  a  building. contract  by  third 
persons  under  the  words  "in  the  presence  of  sureties,"  without  show- 
ing their  relation  to  such  contract  or  to  the  parties  thereto,  can  not 
be  said  to  create  any  contractual  relation,  and  such  alleged  contract 
can  not  be  reformed  so  as  to  impose  a  liability  upon  such  third  per- 
sons: Mead  v.  White,  53  Wash.  638,  102  Pac.  Rep.  753.  See  Foote  v. 
Robbins,  50  Wash.  277,  278,  280,  97  Pac.  Rep.  103;  Allen  v.  Kitchen 
(Idaho),  100  Pac.  Rep.  1052,  1056;  Board  of  Commissioners  of  Marion 
County  v.  Shipley,  77  Ind.  553;  Lee  v.  Hills,  66  Ind.  479;  Grant  v. 
Naylor,  4  Cranch  222,  2  L.  ed.  603;  Glass  v.  Hurlbert,  102  Mass.  24, 
3  Am.  Rep.  418. 

The  undertaking  of  such  alleged  sureties,  being  collateral,  must  be 
In  writing:  Mead  v.  White,  supra  (under  Ballinger's  Ann.  Codes  & 
Stats.  §4576;  Pierce's  Code,  '§5343). 


«  614  MECHANICS'    LIENS— SUPPLEMENT.  214 

guaranteed  the  faithful  performance  of  building  contracts.12 
For  example,  where  payments  to  the  contractor  have  been 
prematurely  made,'13  where  the  owner  failed  to  retain  in 
his  hands  twenty-five  per  cent  of  the  contract  price  as  stipu- 
lated;14 where  the  owner  has  retained  in  his  hands  sufficient 
money  to  pay  all  liens;15  where  there  have  been  substantial 
deviations  in  the  plans  for  the  construction  of  the  building.16 
Mere  knowledge  of  material  change  of  plans  or  of  the  con- 
tract does  not  show  consent  of  sureties  sufficient  to  prevent 
their  being  exonerated.17 

Additional  matter  to  foot-note  19. 1S 

Additional  matter  to  foot-note  21. 19 

Additional  matter  to  foot-note  22.20 


-  12  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491.  497.  99  Pac.  Rep.  856 
(petition  for  hearing  in  Supreme  Court  denied);  s.  c.,  sub  nom.  Bur- 
nett v.  Qlas,  154  Cal.  249,  97  Pac.  Rep.  423. 

13  Glenn  v.  Jones,  146  Cal.  518.  80  Pac.  Rep.  695. 

14  Bragg  v.  Shain,  49  Cal.  131;  Burnett  v.  Glas.  154  Cal.  249,  97  Pac. 
Rep.    423. 

is  Kiessig  v.  Allspaugh,  91  Cal.  231,  27  Pac.  Rep.  655. 

leJudah  v.  Zimmerman,  22  Ind.  388:  United  States  v.  Corwlne,  1 
Bond  339,  Fed.  Cas.  No.  14,871;  Civ.  Code,  §2819;  Burnett  v.  Glas. 
154  Cal.  249,  97  Pac.  Rep.  423. 

IT  California.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  497,  499, 
99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom.  Burnett  v.  Glas, 
154  Cal.  249,  97  Pac.  Rep.  423. 

is  California.  See  Barrett-  Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  494, 
99  Pac.  Rep.  856,  863,  111  Pac.  Rep.  760;  s.  c.,  sub  nom.  Burnett  v. 
Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Colorado.  Thin  in  not  a  rule  of  conat  ruction  -but  of  the  application 
of  the  contract  after  its  meaning  has  been  ascertained  by  the  general 
rules  applicable  to  the  construction  of  contracts:  Hurlburt  v.  Klep- 
hart  (Colo.  Sup.),  115  Pac.  Rep.  521;  Covey  v.  Schiesswohl  (Colo.),  114 
Pac.  Rep.  292.  See  People  ex  rel.  v.  Beach  (Colo.),  113  Pac.  Rep.  513; 
Sather  B.  Co.  v.  Briggs  Co.,  138  Cal.  724,  72  Pac.  Rep.  352:  United 
States  F.  &  G.  Co.  v.  Board  of  Commissioners,  145  Fed.  Rep.  144,  76 
C.  C.  A.  114. 

\\nxliiiiKtoii.  James  Black  M.  &  C.  Co.  v.  National  S.  Co.  (Wash.), 
112  Pac.  Rep.  517,  519. 

Am  to  :i-siKnment  of  contract  without  consent  of  surety :  See  Stran- 
dell  v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106. 

10  California.  See  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  860;  s.  c.. 
9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  a.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

20  WanhlnKton.  See  Monro  v.  National  S.  Co..  47  Wash.  488.  92  Pac. 
Rep.  280. 

AB  to  application  of  payments  See  Hughes  &  Co.  v.  Flint  (Wash.), 
112  Pac.  Rep.  633. 


2J5  THIRD    PERSONS— SURETIES.  §§614a,  615 

§  614a.    Death  of  contractor.     Obligation  of  sureties.    If 

the  obligations  of  the  contractor  under  his  contract  survive 
him  and  are  binding  upon  his  estate  after  death,  the  sureties 
on  his  bond  for  the  performance  of  the  contract  are  as  much 
bound  to  the  performance  of  the  contract  as  if  he  had  con- 
tinued to  live;  and  must,  if  otherwise  obligated,  pay  lien 
claims  accruing  after  the  death  of  the  contractor,  when  his 
personal  representative  carries  out  the  contract.21 

§  615.  Original  contract  as  basis  of  liability.  Under  the 
usual  clause  in  building  contracts  providing  for  alterations 
of  the  original  contract,22  where  the  contractor's  bond  is 
attached  to  the  contract  to  construct  a  one-story  building, 
alterations  in  the  plans  and  specifications  referred  to  have 
relation  to  such  changes  in  a  one-story  building  and  not 
to  such  changes  as  would  create  a  contract  to  erect  a  two- 
story  building;  and  the  surety  on  the  bond  is  released,  if 
a  two-story  building  is  erected.23 

21  Washington.     MacDonald  v.   O'Shea,   58   Wash.    169,   108   Pac.   Rep. 
436,   439. 

22  Form  7,  pp.  812,  813,  Treatise. 

23  California.      Barrett-Hicks    Co.    v.    Glas,    9    Cal.    491,    499,    99    Pac. 
Rep.   856,   111  Pac.  Rep.   760;   s.   c.,   sub   nom.   Burnett  v.   Glas,   154   Cal. 
249,  97  Pac.  Rep.  423. 

Colorado.  When  it  appears  from  the  contract  that  payments  are 
to  be  made  only  when  the  contractor  furnishes  receipted  bills  for  all 
labor  and  materials  in  full,  it  is  an  express  contract  on  the  part  of 
the  contractor  to  pay  for  all  such  labor  and  materials  that  go  into 
the  building;  and  if  the  contractor's  bond  contains  a  provision  that 
he  is  to  perform  such  contract  in  its  entirety,  the  contractor's  sureties 
are  liable  to  the  owner  for  payments  made  to  release  the  property 
from  liens  caused  by  non-payment  of  such  bills  by  the  contractor: 
Covey  v.  Schiesswohl  (Colo.),  114  Pac.  Rep.  292,  293,  explaining-  State 
Board  of  Agriculture  v.  Dimick,  46  Colo.  609,  613,  105  Pac.  Rep.  1114, 
as  relating  to  a  contract  which,  upon  construction,  did  not  require 
the  contractor  to  pay  bills  for  labor  and  materials  for  the  building. 

Where  the  contract  does  not  require  the  contractor  to  pay  for  labor 
done  upon  or  materials  that  enter  into  the  construction  of  a  state 
building,  a  bond  to  secure  the1  performance  of  that  contract  can  not 
be  construed  to  extend  to  laborers  and  material-men,  but  is  limited  to 
the  performance  of  the  contract.  A  condition  in  the  bond  that  such 
bills  are  to  be  paid,  otherwise  the  bond  shall  be  in  force,  must,  in  the 
absence  of  an  agreement  by  the  contractor  to  pay  them,  be  consid- 
ered a  promise  without  consideration:  State  Board  of  Agriculture  v. 
Dimick,  46  Colo.  609,  105  Pac.  Rep.  1114,  1115.  See,  also,  Jefferson 
v.  Asch,  53  Minn.  446,  55  N.  W.  Rep.  531,  39  Am.  St.  Rep.  618,  25  L.  R. 
A.  257  (see  notes);  Vrooman  v.  Turner,  69  N.  Y.  280,  25  Am.  Rep.  195; 


§§615,616         MECHANICS'    LIENS— SUPPLEMENT.  216 

Additional  matter  to  foot-note  23.24 
Additional  matter  to  foot-note  24.25 

§  616.    Auditing  accounts,  as  provided  in  contract. 
Additional  matter  to  foot-note  25.26 

Green  Bay  L.  Co.  v.  School  District,  121  Iowa  663,  97  N.  W.  Rep.  72; 
Montgomery  v.  Spencer,  15  Utah  495,  50  Pac.  Rep.  623. 

See  per  contra:  Baker  v.  Bryan,  64  Iowa  561,  21  N.  W.  Rep.  83; 
Lyman  v.  City  of  Lincoln,  38  Neb.  794.  57  N.  W.  Rep.  531;  Buffalo  F. 
Co.  v.  Cullen,  etc.  Co.,  105  Mo.  App.  484,  79  S.  W.  R«p.  1024. 

"An  examination  of  the  cases  on  this  subject  discloses,  as  said  by 
the  Supreme  Court  of  Utah  in  Montgomery  v.  Spencer,  15  Utah  495, 
50  Pac.  Rep.  623,  that  generally  there  must  be  an  express  covenant 
that  a  contractor  should  pay  the  claims  of  those  not  immediate  parties 
to  a  contract  to  entitle  them  to  sue  to  enforce  the  penalty  of  a  bond 
which  is  given  to  secure  its  performance.  Since  the  complaint  falls 
to  allege  that  some  provision  of  his  contract  with  the  state  board 
required  the  builder  to  pay  material-men  and  laborers,  we  must  hold 
that  the  latter  are  not  entitled  to  sue  upon  the  guaranty  bond  as  one 
given  for  their  benefit.  The  distinction  we  have  pointed  out  is  well 
illustrated  in  the  later  Iowa  cases.  We  have  found  no  well-considered 
case  where  a  guaranty  bond  is  held  to  be  for  the  benefit  of  those 
who  are  not  parties  to  a  contract,  performance  of  which  the  bond 
secures,  in  the  absence  from  the  contract,  either  of  an  express  agree- 
ment of  the  contractor  to  pay  to  such  third  persons  for  material  or 
labor,  or  of  such  words  as  require  of  him,  before  final  payment,  the 
production  of  a  receipt  showing  that  no  liens  or  claims  therefor  are 
in  existence,  or  the  production  of  receipts  showing  the  payment  of 
such  bills,  or  some  similar  provision  which  the  courts  hold  equivalent 
to  an  express  contract  to  pay  them":  State  Board  of  Agriculture  v. 
Dimick,  46  Colo.  609,  105  Pac.  Rep.  1114,  1115. 

24  California.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491.  497,  499,  99 
Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom.  BurneCt  v.  Glas,  154 
Cal.  249,  97  Pac.  Rep.  423. 

Idaho.  Surety  bound  by  contraction  given  contract  by  acts  of  con- 
tractor: See  Sanders  v.  Keller  (Idaho),  111  Pac.  Rep.  350. 

Washington.  Kracht  v.  Empire  State  S.  Co.  (Wash.),  113  Pac. 
Rep.  773. 

zs  Colorado.  Contract  made  part  of  bond  by  reference:  See  Covey 
v.  Schiesswohl  (Colo.),  114  Pac.  Rep.  292. 

Washington.  Itttt  where  he  concent*  to  a  change  or  modification 
of  the  contract,  the  surety  can  not  avoid  his  liability  for  alterations, 
as  stated  in  the  text:  Keeman  v.  Empire  State  S.  Co.  (Wash.),  113 
Pac.  Rep.  636,  638. 

28  California.  Certificate*  need  not  be  given  by  a  professional  archi- 
tect: Bacigalupi  v.  Phoenix  B.  &  C.  Co.  (Cal.  App.),  112  Pac.  Rep. 
892,  895. 

Washington.  See  Lazelle  v.  Empire  State  S.  Co.,  58.  Wash.  589,  109 
Pac.  Rep.  195,  197. 

Subsequent  agreement  of  imrety  after  abandonment,  whereby  new 
contract  is  let;  provision  for  auditing  not  applicable  and  surety  bound: 
Young  Men's  Christian  Assoc.  v.  Gibson,  58  Wash.  307,  108  Pac.  Rep. 
766,  769;  likewise,  if  valid  claims  exceed  penalty  of  bond:  Young 
Men's  Christian  Assoc.  v.  Gibson,  supra. 


217  THIRD    PERSONS — SURETIES.  SS  (5^7    g^g 

§  617.     Construction  of  bond. 

Additional  matter  to  foot-note  26. 27 

§  618.  Surety's  rights.28  Notice.  A  clause  in  a  con- 
tractor's bond  that  notice  shall  be  "promptly  and  immedi- 
ately" given  to  the  surety  upon  knowledge  of  any  default 
means  that  such  notice  must  be  given  within  a  reasonable 
time;  and  it  is  for  the  jury  to  determine  whether  or  not 
such  notice  has  been  given  within  a  reasonable  time.29 

Where  the  owner  retains  funds  out  of  the  contract  price 
payable  to  the  contractor,  more  than  sufficient  to  meet  all 
the  demands  against  the  building  for  materials  furnished 
for  and  labor  done  on  the  same,  and  thereby  frees  the  build- 
ing from  all  liens,  the  sureties  on  the  contractor's  bond  are 
exonerated  from  further  obligation  thereon.30 

Additional  matter  to  foot-note  29.31 


Surety  not  bound  by  certificate,  if  architect  does  not  make  personal 
examination  and  exercise  personal  judgment:  Use  v.  Aetna  I.  Co.,  55 
Wash.  487,  104  Pac.  Rep.  787. 

27  Washington.      If   the    claim    would    have    been    filed   but   for    such 
payment:  MacDonald  v.  O'Shea,  58  Wash.  169,  108  Pac.  Rep.  436,  439. 

Law  to  be  read  into  contract:  Leiendecker  v.  Aetna  I.  Co.,  52  Wash. 
609,  101  Pac.  Rep.  219. 

28  Colorado.      Contractor's    surety   making   payment    to    owner,   after 
abandonment  by  contractor:     See  Rice  v.  Rhone   (Colo.),  Ill  Pac.  Rep. 
585,    587. 

.  Washington.  Surety  need  not  file  claim  against-  estate  of  deceased 
contractor  from  whom  he  received  indemnifying  mortgage,  when  he 
relies  only  upon  mortgage  foreclosure:  MacDonald  v.  O'Shea,  58  Wash. 
169,  108  Pac.  Rep.  436,  439. 

29  Bacigalupi  v.  Phoenix  B.   &  C.  Co.    (Cal.  App.),  112  Pac.  Rep.   892, 
8*5;   Martin  v.   Empire  State   S.   Co.,   53   Wash.    290,   101   Pac.   Rep.    876. 
See  Fidelity  &  Deposit  Co.  v.  Courtney,  186  U.  S.  342,  22  Sup.  Ct.  Rep. 
833,   46  L.  ed.   1193;   Remington  v.  Fidelity  &  D.   Co.,  27  Wash.   429,   67 
Pac.  Rep.   989;   Fidelity  &  Deposit  Co.  v.  Courtney,   103  Fed.   Rep.   599, 
43   C.   C.   A.    331;    People's  M.   A.   Assoc.   v.   Smith,    126   Pa.    317,    17   Atl. 
Rep.  605,  12  Am.  St.  Rep.  870;  Van  Buren  v.  American  S.  Co.,  137  Iowa 
490,   115   N.   W.   Rep.    24,    126   Am.    St.    Rep.    290;    Kentzler  v.   American 
M.  Assoc.,  88  Wis.   589,  60  N.  W.  Rep.   1002,  43  Am.  St.  Rep.  934;  Solo- 
mon v.  Continental  F.  I.  Co.,  160  N.  Y.  595,  55  N.  E.  Rep.   279,  46  L.  R. 
A.    682,   73   Am.   St.   Rep.   707;   Lyon   v.   Railway  P.   Assoc.   Co.,   46   Iowa 
631;  Niagara  F  I.  Co.  v.  Scammon,   100  111.   644;   Ward  v.  Maryland  C. 
Co.,  71  N.  H.  262,  51  Atl.  900,  93  Am.  St.  Rep.  514. 

so  California.  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  860;  s.  c., 
9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

si  Washington.     See  §626,  this  Supplement,  post,  note. 


§§  618-620          MECHANICS'    LIENS — SUPPLEMENT.  218 

Additional  matter  to  foot-note  30.32 

§  619.    Surety  as  lien  claimant. 
Additional  matter  to  foot-note  31. 33 
Additional  matter  to  foot-note  32.34 
Additional  matter  to  foot-note  '&}.'•'•'' 

i  620.  Surety  under  legal  obligation  not  to  foreclose  lien. 
A  contractor's  surety  who  has  guaranteed  the  delivery  of 
the  building  free  of  liens  can  not  enforce  a  lien  against  the 
building;  but  a  partnership  of  which  such  surety  may  be  a 
member  is  not  necessarily  barred  from  a  lien  for  materials 
furnished  by  it,  especially  where  it  does  not  appear  that  the 
surety  assumed  to  act  in  his  capacity  as  a  member  of  the 

Failure  to  give  notice  to  a  nurety  company  on  the  bond  of  the  con- 
tractor for  more  than  two  months  is  only  a  defense  In  so  far  as  the 
surety  has  been  damaged  or  prejudiced  by  such  failure;  but  a  failure 
to  give  notice  at  an  earlier  date  would  release  the  surety  from  any 
claim  for  damages  for  demurrage,  or  for  failure  to  complete  the  build- 
ing in  time,  but  not  for  damages  arising  from  lien  claims  for  labor 
or  material:  Monro  v.  National  S.  Co.,  47  Wash.  488,  92  Pac.  Rep.  280. 

Waiver  of  notice  to  nurety  of  failure  of  contractor  to  perform:  See 
Monro  v.  National  S.  Co.,  47  Wash.  488,  92  Pac.  Rep.  280. 

32  \YiiNliington.     Compare  Sheard   v.   United   States   F.   &   G.   Co.,   58 
Wash.  29,  107  Pac.  Rep.  1024,   1027. 

\\  :i-ii  iiiuti.n.  Where  the  bond  requires  the  owner  to  notify  the 
*urety  of  a  breach  of  the  contract,  the  surety  can  not  complain  of  lack 
of  notice  of  breach  of  contract  as  to  minor  details  which  are  corrected, 
the  owner  thereby  suffering  no  loss,  nor  where  the  surety  can  show 
no  substantial  damage  or  loss  by  ceason  of  failure  to  receive  notice 
in  the  exact  and  technical  language  of  the  contract,  nor  when  it  has 
not  been  prevented  from  taking  proper  steps  for  its  protection:  La- 
zelle  v.  Empire  State  S.  Co.,  58  Wash.  589,  109  Pac.  Rep.  195,  196;  Mar- 
tin v.  Empire  State  S.  Co.,  53  Wash.  290,  101  Pac.  Rep.  876.  Compare 
Exposition  A.  Co.  v.  Empire  State  S.  Co.,  49  Wash.  637,  96  Pac.  Rep. 
158.  160,  97  Pac.  Rep.  464. 

Surety  completing;  contract  after  abandonment  by  contractor:  See 
Exposition  A.  Co.  v.  Empire  State  S.  Co.,  49  Wash.  637,  96  Pac.  Rep. 
158,  160,  97  Pac.  Rep.  464. 

Notice  to  anrety  that  It  may  content  final  nettlement :  See  Exposition 
A.  Co.  v.  Empire  State  S.  Co.,  49  Wash.  637,  96  Pac.  Rep.  158,  160,  97 
Pac.  Rep.  464. 

33  See  i  620,  this  Supplement,  post. 

34  See  I  622  of  Treatise,  ante. 

Idaho.     See  Sanders  v.  Keller  (Idaho),  111  Pac.  Rep.  350,  352. 

35  See  §  629  of  Treatise,  ante. 

California.  See  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  496,  99 
Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom.  Burnett  v.  Glas,  154 
Cal.  249,  97  Pac.  Rep.  423. 


219  THIRD    PERSONS— SURETIES.  S  (J20 

firm,  and  with  relation  thereto  or  connection  therewith,  or 
with  the  knowledge  or  assent  of  his  copartners;  and  the 
court  is  warranted  in  concluding  from  the  bond  itself  that 
he  acted  in  his  individual  capacity,  and  the  burden  of  proof 
that  he  acted  with  the  authority  of  his  copartners  is  upon 
the  owner.36 

Where  one  of  a  copartnership  is  a  surety  on  the  contract- 
or's bond  in  his  individual  capacity  and  without  any  rela- 
tion to  the  copartnership  or  connection  therewith,  and  with- 
out the  knowledge,  authorization  or  consent  of  his  copart- 
ners, and  subsequent  to  the  date  of  the  contract  between 
the  copartnership  and  the  contractor  for  the  furnishing  of 
the  materials  for  the  building,  the  copartnership  may  file  a 
lien  for  such  materials  furnished.37 

In  case  of  exoneration  of  surety.  If  a  surety  on  the  con- 
tractor's bond  for  the  delivery  of  the  completed  building 
free  from  liens  is  exonerated  from  liability  by  reason  of  the 
acts  of  the  owner,  the  obligee,  the  rule  preventing  such 
surety  from  foreclosing  a  lien  for  materials  furnished  or 
labor  performed  on  the  building  has  no  application.38 

Where  a  claimant  merely  accepts  an  assignment  of  the 
original  contract  as  indemnity  against  loss  as  surety  of  the 
contractor  and  therefore  to  insure  the  proper  application  of 
the  moneys  due  and  to  become  due  on  the  contract,  and  he 
in  no  sense  assumes  any  liability  to  the  owner  or  to  .those 
performing  labor  upon  or  furnishing  materials  for  the  struc- 
ture, he  may  enforce  a  lien  for  materials  furnished  to  the 
original  contractor.39 

Additional  matter  to  foot-note  34. 40 

se  California.  Burnett  v.  Glas,  154  Cal.  249,  256,  97  Pac.  Rep.  423. 
See  s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  496,  99 
Pac.  Rep.  856,  111  Pac.  Rep.  760. 

37  California.     Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  860;  s.  c., 
9   Cal.   App.    491,   99   Pac.   Rep.   856,   111   Pac.   Rep.    760;    s.   c.,   sub   nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

38  California.     Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  499,  99  Pac. 
Rep.   856,   111   Pac.   Rep.   760;   s.   c.,  sub  nom.  Burnett  v.   Glas,    154   Cal. 
249,  97  Pac.  Rep.  423. 

39  California.     Barrett-Hicks  Co.   v.  Glas    (Cal.   App.),   Ill   Pac.   Rep. 
760,  765;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

40  See  §  629  of  Treatise,  ante. 


§§  621-623          MECHANICS'    LIENS— SUPPLEMENT.  220 

§  621.     Obligee  of  bond  destroying  security  of  surety. 
Additional  matter  to  foot-note  35.41 

§  622.  Premature  payments.  Generally.  But  where  a 
payment  is  not  under  the  circumstances  of  the  case  deemed 
to  be  premature,  the  surety  is  not  exonerated.42 

Additional  matter  to  foot-note  37.43 

Additional  matter  to  foot-note  39.44 

Additional  matter  to  foot-note  40.45 

§  623.     Same.    Intermediate  instalments. 
Additional  matter  to  foot-note  41.40 

Idaho.  The  surety  of  the  contractor  can  not  maintain  an  action 
for  the  foreclosure  of  a  Hen  for  materials  furnished  where  the  full 
contract  price  has  been  paid  to  the  contractor,  but  otherwise  where 
the  whole  contract  price  has  not  been  paid  prior  to  the  receipt  of 
notice  by  the  owner  that  the  surety  had  such  claim;  where  notice  Is 
given  the  owner  would  clearly  not  be  Justified  in  making  further  pay- 
ments to  the  contractor,  to  the  injury  of  the  surety:  Sanders  v.  Keller 
(Idaho),  111  Pac.  Rep.  350. 

41  California.     See  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.   857,  860; 
s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97 'Pac.  Rep.  423. 

\\  aoiiinutoii.  James  Black  M.  &  C.  Co.  v.  National  S.  Co.  (Wash.), 
112  Pac.  Rep.  517.  519. 

A«  to  release  of  party  to  contract:  See  Young  Men's  Christian 
Assoc.  v.  Gibson,  58  Wash.  307,  108  Pac.  Rep.  766,  768. 

Am  to  release  of  one  partner  of  a  firm  of  contractors:  See  Young 
Men's  Christian  Assoc.  v.  Gibson,  58  Wash.  307,  108  Pac.  Rep.  766,  769. 

42  California.      Baclgalupl   v.    Phoenix    B.    &    C.    Co.    (Cal.    App.),    112 
Pac.  Rep.  892,  895. 

43  California.     See  Russell  v.  Ross,  157  Cal.  174,  106  Pac.  Rep.  583. 

\\  ..-.i,iiiU(,>n.  James  Black  M.  &  C.  Co.  v.  National  S.  Co.  (Wash.), 
112  Pac.  Rep.  517,  519;  Leiendecker  v.  Aetna  I.  Co.,  52  Wash.  609,  101 
Pac.  Rep.  219. 

Contrary  rule,  where  sureties  are  not  injured:  Monro  v.  National 
S.  Co.,  47  Wash.  488,  92  Pac.  Rep.  280.  See  §  618,  this  Supplement,  ante, 
note. 

A  compensated  onrety  will  not  be  relieved  of  his  obligation,  unless 
it  be  shown  that  he  has  been  in  fact  prejudiced  by  a  breach  of  the 
contract,  that  is  not  merely  technical  but  substantial,  working  a 
pecuniary  disadvantage  to  the  surety,  or  depriving  him  of  some  pro- 
tection or  privilege  reserved  in  the  bond:  James  Black  M.  &  C.  Co. 
v.  National  S.  Co.  (Wash.),  112  Pac.  Rep.  517,  518,  citing  cases  to 
Washington  note  in  Treatise,  and  distinguishing  Leghorn  v.  Nydell, 
39  Wash.  17,  80  Pac.  Rep.  833,  and  Monro  v.  National  S.  Co.,  47  Wash. 
488,  92  Pac.  Rep.  280. 

44  California.      Russell   v.   Ross,    157   Cal.   174,   180,   106   Pac.   Rep.    583 
(Construction  of  a  vessel). 

45  See  f  619  of  Treatise,  ante. 

46  California.     See  Barrett-Hicks  Co.   v.  Glas,  99   Pac.  Rep.   857,  860; 


221  THIRD    PERSONS— SURETIES.  §§  £24,  625 

§  624.     Same.    Final  instalment. 
Additional  matter  to  foot-note  45. 47 

§  625.    Liability  of  sureties.48  Damages. 
Additional  matter  to  foot-note  46. 49  t 

Additional  matter  to  foot-note  49. 50 

s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Washington.  But  see  Young  Men's  Christian  Assoc.  v.  Gibson,  58 
Wash.  337,  108  Pac.  Rep.  766,  769. 

If  the  building  contract  provides  for  a  round  sum  and  does  not 
stipulate  for  the  time  when  payment  shall  be  made,  the  guarantor  of 
the  contract  is  not  discharged  by  the  owner  making  payments  to  the 
contractor  as  the  work  progresses  and  before  it  is  completed:  Leien- 
decker  v.  Aetna  I.  Co.,  52  Wash.  609,  101  Pac.  Rep.  219,  220. 

47  California.     Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  860;  s.  c., 
9   Cal.   App.    491,   99   Pac.   Rep.    856,   111   Pac.   Rep.    760;    s.    c.,   sub   nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Washington.  Notice  to  surety  of  final  settlement:  See  Exposition 
A.  Co.  v.  Empire  State  S.  Co.,  49  Wash.  637,  96  Pac.  Rep.  158,  160,  97 
Pac.  Rep.  464. 

48  Washington.      A    secret    understanding   not    amounting   to    a    con- 
tract  between    the   owner   and   contractor   whereby   the   latter    was   to 
receive  security   not  exonerating  surety:    See   Martin   v.   Empire   State 
S.  Co.,  53  Wash.  290,  101  Pac.  Rep.  876. 

49  California.      Attorney's    fees    recoverable:      Klokke   V.    Raphael,    8 
Cal.   App.   1,   5,   96   Pac.   Rep.   392,   distinguishing  Burnett  v.   Glas    (Cal. 
App.),  97  Pac.  Rep.  423  on  the  ground  that  the  fund  was  not  exhausted 
in    that    case    and    that    the    contract    was    void    and    that    the    owner 
wrongfully  refused  to  pay  a  large  amount  in   his  hands  in   excess   of 
all   claims  of  lien  against  his  property. 

Washington.  No  recovery  for  delay  caused  by  owner:  See  Sheard 
v.  United  States  F.  &  G.  Co.,  58  Wash.  29,  107  Pac.  Rep.  1024,  1027. 

Damages  for  delay;  surety  not  exonerated:  See  Keenan  v.  Empire 
State  S.  Co.  (Wash.),  113  Pac.  Rep.  636,  638. 

Only  attorneys'  fees  in  defending  lien  cases  actually  paid  recover- 
able as  damages:  Sheard  v.  United  States  F.  &  G.  Co.,  58  Wash.  29, 
107  Pac.  Rep.  1024,  1027. 

Showing  amount  of  claims  as  damages,  whether  claims  brought 
into  action  or  not:  See  Exposition  A.  Co.  v.  Empire  State  S.  Co.,  49 
Wash.  637,  96  Pac.  Rep.  158,  159,  97  Pac.  Rep.  464. 

As  to  recovery  of  costs:  See  Sheard  v.  United  States  F.  &  G.  Co., 
58  Wash.  29,  107  Pac.  Rep.  1024,  1027. 

Failure  of  owner  to  make  payment.  A  surety  company  is  not  exon- 
erated because  the  owner  fails  to  make  payment  at  the  time  payment 
is  due  according  to  contract,  where  there  is  nothing  to  show  that  the 
certificate  required  was  ever  presented  for  payment,  or  that  the  want 
of  payment  was  a  cause  in  any  degree  of  the  failure  of  the  contractor 
to  finish  the  building  according  to  the  agreement:  Martin  v.  Empire 
State  S.  Co.,  53  Wash.  290,  101  Pac.  Rep.  876. 

50  California.      Right    and   duty   of    owner   to    make    loss    as    light    as 
possible,  upon  abandonment,  and   upon   refusal   of   surety   to   complete 
contract,    owner  may   do   so:     Russell   v.   Ross,    157    Cal.    174,    106    Pac. 
Rep.   583. 

Colorado.     See  Rice  v.  Rhone  (Colo.),  Ill  Pac.  Rep.  585,  587. 


§§  625    626         MECHANICS'    LIENS— SUPPLEMENT.  222 


Additional  matter  to  foot-note  50.51 

§  626.     Bond  of  contractor  on  public  work. 
Additional  matter  to  foot-note  51.52 


si  Idaho.  Admissions  that  there  are  no  charges  for  extras  binding 
on  surety  as  part  of  res  gestae:  See  Sanders  v.  Keller  (Idaho),  111 
Pac.  Rep.  350,  362. 

Washington.  Surety  not  liable  to  owner  for  work  done  by  claimant 
which  is  not  a  substantial  performance  of  the  contract:  See  Exposition 
A.  Co.  v.  Empire  State  S.  Co.,  49  Wash.  637,  96  Pac.  Rep.  158,  160,  97 
Pac.  Rep.  464. 

No  recovery  against  mirety  for  extra  work  not  covered  by  contract 
or  bond:  See  Sheard  v.  United  States  F.  &  G.  Co.,  58  Wash.  29,  107 
Pac.  Rep.  1024,  1027. 

•*•-  llond  of  contractor  on   public  work! 

California.  See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  508, 
97  Pac.  Rep.  216;  a.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218;  City  S.  I. 
Co.  v.  Kroh,  158  Cal.  318,  110  Pac.  Rep.  933,  938. 

Colorado.  Duty  of  public  authorities  to  take  bond:  State  Board 
of  Agriculture  v.  Dimick,  46  Colo.  609,  105  Pac.  Rep.  1114. 

Bond  muMt  be  for  benefit  of  clalmantx:  See  State  Board  of  Agricul- 
ture v.  Dimick,  46  Colo.  609,  105  Pac.  Rep.  1114. 

See  S  615  this  Supplement,  ante,  note. 

Idaho.    Compare  Rathbun  v.  State,  15  Idaho  273,  97  Pac.  Rep.  335,  336. 

KimxiiM.  Compare  National  S.  Co.  v.  Wyandotte  C.  &  L.  Co.,  76  Kan. 
914,  92  Pac.  Rep.  1111. 

Washington.  Notice  to  owner t  See  Strandell  v.  Moran,  49  Wash. 
533,  95  Pac.  Rep.  1106  (over  statement  of  amount). 

Notice  to  Huretyt  Cascade  L.  Co.  v.  Aetna  I.  Co.,  56  Wash.  503,  106 
Pac.  Rep.  158;  Minneapolis  S.  &  M.  Co.  v.  Aetna  I.  Co.,  56  Wash.  699, 
106  Pac.  Rep.  160. 

Delivery  of  duplicate  statement  under  mechanics'-lien  law  not  ap- 
plicable under  Laws  1909,  c.  45,  81:  Gate  City  L.  Co.  v.  City  of  Monte- 
sano  (Wash.),  Ill  Pac.  Rep.  799. 

Second  notice  to  cure  defects  In  first  notice,  under  §  5925  Ballinger's 
Ann.  Codes  &  St.  (§6121,  Pierce's  Code):  See  Cascade  L.  Co.  v.  Aetna 
I.  Co.,  56  Wash.  503,  106  Pac.  Rep.  158;  Minneapolis  S.  &  M.  Co.  v. 
Aetna  I.  Co.,  56  Wash.  699,  106  Pac.  Rep.  160. 

Am  to  proceedlnKs  under  this  statute,  see,  generally,  Fransioli  v. 
Thompson,  55  Wash.  259,  104  Pac.  Rep.  278,  280. 


223  WAIVER,    FORFEITURE    AND   RELEASE.    8S  627-629 


CHAPTER  XXXI. 

WAIVER,  FORFEITURE,  AND  RELEASE  OF  LIEN. 

§  627.  Waiver  of  lien.  General  principle.  An  agreement 
to  waive  the  lien  of  one  who  performs  labor  upon  or  fur- 
nishes materials  for  a  building  must  be  certain  and  must  be 
clearly  and  unequivocally  established;1  and  if  such  agree- 
ment is  subject  to  conditions  subsequent  which  are  not  per- 
formed by  the  other  party  the  claimant  does  not  waive  his 
lien.2  By  merely  agreeing  that  he  will  save  the  owner  harm- 
less from  liens,  the  contractor  does  not  waive  his  own  rights 
to  a  lien.  Such  a  clause  will  be  construed  to  mean  liens 
except  his  own.3 

Additional  matter  to  foot-note  I.4 

Additional  matter  to  foot-note  3.5 

§  628.     Same.     Statutory  provision.6 

§  629.  Same.  Knowledge  of  lack  of  authority  of  em- 
ployer. 

Additional  matter  to  foot-note  5.7 

i  Illinois.     Concord  A.  H.  Co.  v.  O'Brien,  128  111.  APR.  437. 

Pennsylvania.  Nice  v.  Walker,  153  Pa.  123,  25  Atl.  Rep.  1065,  34  Am. 
St.  Rep.  688. 

Washington.  Pac.  L.  &  T.  Co.  v.  Dailey  (Wash.),  Ill  Pac.  Rep.  869, 
870;  Holm  v.  Chicago  M.  &  P.  S.  Ry.  Co.  (Wash.),  109  Pac.  Rep.  799, 
801. 

-•\\sishiiiKion.  Pac.  L.  &  T.  Co.  v.  Dailey  (Wash.),  Ill  Pac.  Rep. 
869,  870. 

See  Release,  §  634,  this  Supplement,  post. 

r:\Vsi.shiiiKton.  Rhone  v.  Chicago  M.  &  P.  S.  Ry.  Co.  (Wash.),  109 
Pac.  Rep.  799,  801. 

Wisconsin.  Davis  v.  Lacrosse  H.  Assoc.,  121  Wis.  579,  99  N.  W. 
Rep.  351. 

4  Colorado.     As  to  waiver  of  lien  by  giving  credit  solely  to  the  per- 
son: Compare  Rice  v.  Rhone   (Colo.),  Ill  Pac.  Rep.  585. 

5  Illinois.     Concord  A.  H.  Co.  v.  O'Brien,  128  111.  App.  437. 
Washington.     Holm  v.  Chicago  M.  &  P.  S.  Ry.  Co.   (Wash.),  109  Pac. 

Rep.   799,   801. 

6  See   §§  510   et   seq.,   ante. 

California.     §  1201   Code  Civ.  Proc.  was  not  amended  in   1911. 

7  Washington.     As  to  estoppel,  see  Seattle  L.  Co.  v.  Cutler   (Wash.), 
116  Pac.  Rep.  1. 


§§  630-633          MECHANICS'    LIENS— SUPPLEMENT.  224 

§  630.  Same.  Taking  additional  security.  There  was 
nothing  in  the  Mechanics'  Lien  Law  of  California  before  the 
amendment  of  1911  which  would  release  the  owner  of  the 
building  from  the  operation  of  the  lien  to  which  a  claimant 
was  entitled  by  reason  of  the  fact  that  a  third  person  had 
assumed  the  relation  of  guarantor  of  the  debt.  The  creditor 
could  not  be  presumed  to  have  waived  his  lien  by  having 
taken  this  additional  security.8 

Additional  matter  to  foot-note  6.9 

Additional  matter  to  foot-note  7.10 

§  631.     Same.    Entry  of  judgment. 
Additional  matter  to  foot-note  12. n 

§  632.    Forfeiture  by  false  or  excessive  claim  or  notice. 
Additional  matter  to  foot-note  15. 12 

§  633.     Same.     Illustrations. 
Additional  matter  to  foot-note  23. 13 
Additional  matter  to  foot-note  24. 14 


8  California.  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  865,  111  Pac. 
Rep.  760;  s.  c.,  sub  nom.  Burnett  v.  Glas,  154  Cal.  249,  92  Pac.  Rep.  423. 

o  Wanhlngton.  See  Pac.  L.  &  T.  Co.  v.  Dailey  (Wash.),  Ill  Pac.  Rep. 
869,  870;  Fairbanks-Morse  &  Co.  v.  Union  B.  T.  Co..  55  Wash.  538,  104 
Pac.  Rep.  815,  817. 

10  Washington.     See  Bowles  v.  Fraser  (Wash.),  109  Pac.  Rep.  812. 

11  Oklahoma.     Albert!  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 
Oregon.     Following  Marean  v.  Stanley,  5  Colo.  App.  335;  Benbow  v. 

The  James  Johns   (Oregr.),  108  Pac.  Rep.  634,  638. 

Utah.     State  ex  rel.  Dorset  v.  Morse  (Utah),  103  Pac.  Rep.  969. 

12  California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  651;  Stockton  L.  Co. 
v.   Schuler,    155   Cal.    411,   414. 

Forfeiture  by  change  In  lawi  See  D.  I.  Nofziger  L.  Co.  v.  Waters, 
10  Cal.  App.  89.  91,  101  Pac.  Rep.  38. 

See  §§  35-38  Treatise  and  this  Supplement. 

13  California.      See   Lucas   v.   Gobbi,    10   Cal.    App.    648,    651,    103    Pac. 
Rep.   157. 

14  Alaska.     Pioneer   M.    Co.   v.   Delamotte    (C.   C.   A.),    185   Fed.    Rep. 
852,  855. 

Colorado.  Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo. 
461,  94  Pac.  Rep.  570,  573. 

KIIIIHII*.     Home  L.  &  S.  Co.  v.  School  Dist.  (Kan.),  115  Pac.  Rep.  590. 

Washington.  Strandell  v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106; 
Bellingrham  v.  Linck,  53  Wash.  208,  101  Pac.  Rep.  843,  844. 


225  WAIVER,    FORFEITURE    AND    RELEASE,     gg  634-637 

§  634.     Release  of  lien.15 
Additional  matter  to  foot-note  25. 16 

§  635.  Same.  Composition  agreement.  Definition.  Offer 
and  tender  of  a  less  amount  by  a  debtor  to  the  creditor 
which  clearly  discloses  to  the  creditor  that  it  is  in  full  satis- 
faction of  a  disputed  claim,  and  retention  of  the  amount  by 
the  Creditor,  constitute  an  accord  and  satisfaction.17 

§  636.     Same.     Agreement  to  assign  claims  to  owner.18 
§  637.     Same.     Effect  of  composition  agreement.19 

IB  California.  See  release  of  lien  by  filing  contract  and  bond  under 
amendment  of  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

16  Colorado.  Agreement  to  release  must  be  clearly  established:  Har- 
vey v.  Denver  &  R.  G.  R.  Co.,  44  Colo.  258,  99  Pac.  Rep.  31,  35. 

New  Mexico.  Insurance  company  not  subrogated  to  the  rights  of 
lienholder  upon  payment  of  claim  under  policy  of  insurance:  Burton- 
Lingo  Co.  v.  Patton  (N.  M.),  107  Pac.  Rep.  679,  682,  683. 

Washington.  As  to  release  of  only  personal  liability  of  owner:  See 
Seattle  L.  Co.  v.  Cutler  (Wash.),  116  Pac.  Rep.  1. 

IT  California.     Weller  v.  Stevens,  12  Cal.  App.  779,  108  Pac.  Rep.  532. 

Colorado.  Harvey  v.  Denver  &  R.  G.  R.  Co.,  44  Colo.  258,  99  Pac. 
Rep.  31,  35. 

is  California.  See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  509, 
97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

19  Accord  and  satisfaction: 

Idaho.     See  Heath  v.  Potlach  L.  Co.,   18  Idaho  42,  108  Pac.  Rep.  343. 

Kansas.  See  Mathemy  v.  City  of  Eldorado,  82  Kan.  720,  109  Pac. 
Rep.  166. 

Washington.  See  Seattle  R.  &  S.  Ry.  Co.  v.  Seattle-Tacoma  P.  Co. 
(Wash.),  116  Pac.  Rep.  289. 

Wyoming.  See  City  of  Rawlins  v.  Jungquist,  16  Wyo.  403,  96  Pac. 
Rep.  96,  144. 


Bloom's  Sup. — 15 


PART  II. 

PLEADING  AND  PROCEDURE. 


CHAPTER  XXXII. 

REMEDIES. 

§  638.    Cumulative  remedies.    Personal  action. 
Additional  matter  to  foot-note  I.1 
Additional  matter  to  foot-note  3.2 

§  639.    Same.    Election,  when  several  suits  commenced. 
Additional  matter  to  foot-note  5.3 

§  640.     Same.     Nature  of  action  to  foreclose  lien. 
Additional  matter  to  foot-note  6.4 


1  Idaho.      Naylor    &    Norlin    v.    Lewiston    &    S.    P.    E.    E.    Ry.    Co.,    14 
Idaho  722,  95  Pac.  Rep.   827,   828;   s.  c.,  96  Pac.  Rep.  573. 

Kansas.  Whether  actions  can  be  prosecuted  at  the  same  time  upon 
bond  given  under  Mechanics'  Lien  Law  and  to  foreclose  lien:  See 
Deatherage  v.  Mills  (Kan.),  116  Pac.  Rep.  505. 

Oklahoma.     Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 

Utah.    State  ex  rel.  Dorset  v.  Morse  (Utah),  103  Pac.  Rep.  969. 

2  Colorado.     But  see  Hall  v.  Cudahy,  46  Colo.  324,  104  Pac.  Rep.  415. 
Oklahoma.     Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 
Utah.     State  ex  rel.  Dorset  v.  Morse  (Utah),  103  Pac.  Rep.  969. 
Washington.     Rasmussen  v.  Liming,  50  Wash.  184,  96  Pac.  Rep.  1044. 

3  California.     Action  for  breach  of  concurrent  contracts  for  delivery 
of  material:  See  Fairchild-Gilmore-Wilton  Co.  v.  Southern  R.  Co.,  158 
Cal.   264,  110  Pac.  Rep.  951. 

Utah.     State  ex  rel.  Dorset  v.  Morse   (Utah),  103  Pac.  Rep.  969. 

Washington.  Where  claimant  sties  upon  both  express  and  implied 
agreements  he  can  not  be  required  to  separate  his  causes  of  action  or 
to  elect  upon  which  cause  he  will  rely:  Holm  v.  Chicago  M.  &  P.  S. 
Ry.  Co.  (Wash.),  109  Pac.  Rep.  799. 

Alaska.  Pioneer  M.  Co.  v.  Delamotte  (C.  C.  A.),  185  Fed.  Rep. 
752,  756. 

4  California.      Coghlan    v.    Quartararo     (Cal.    App.),    115    Pac.    Rep. 
664,   666. 

Idaho.     Naylor   &  Norlin   v.   Lewiston   &   S.   E.   E.   Ry.   Co.,    14   Idaho 

(227) 


§§  640-642          MECHANICS'    LIENS — SUPPLEMENT.  228 

Additional  matter  to  foot-note  8.5 

§  641.     Same.    Actions  by  original  contractor. 
Additional  matter  to  foot-note  10.° 
Additional  matter  to  foot-note  12." 
Additional  matter  to  foot-note  13.8 

§  642.    Same.    Actions  by  subclaimants. 
Additional  matter  to  foot-note  21. 9 
Additional  matter  to  foot-note  22. 10 
Additional  matter  to  foot-note  25. n 
Additional  matter  to  foot-note  26. 12 


722.  95  Pac.  Rep.  827,  828,  96  Pac.  Rep.  573;  Nelson  Bennett  Co.  v.  Twin 
Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  799,  92  Pac.  Rep.  980. 

Oklahoma.  Either  at  law  or  In  equity i  See  Jones  v.  Balsley  (Okl.), 
Ill  Pac.  Rep.  942;  s.  c.,  25  Okl.  344,  106  Pac.  Rep.  820. 

Utah.     State  ex  rel.  Dorset  v.  Morse   (Utah),  103  Pac.  Rep.  969. 

WiiMhlnitlon.  Pacific  L.  &  T.  Co.  v.  Dailey  (Wash.),  Ill  Pac.  Rep. 
869,  870. 

B  California.  Los  Angeles  County  v.  Wlnans,  13  Cal.  App.  234,  109 
Pac.  Rep.  640.  650. 

As  to  proceeding  In  rent  under  iitreet  Improvement  act  of  1885:  See 
Los  Angeles  County  v.  Winans,  109  Pac.  Rep.  640,  648;  s.  c.,  13  Cal. 
App.  234,  109  Pac.  Rep.  650. 

Kansas.     See  New  v.  Smith,  68  Kan.  807,  74  Pac.  Rep.  610. 

Minnesota.     See  Sanders  v.  Caisson,  13  Minn.  379,   45  N.  W.  Rep.   15. 

Montana.  Compare  Gassert  v.  Strong,  38  Mont.  18,  98  Pac.  Rep. 
497,  500. 

Oklahoma.  Jones  v.  Balsley  (Okl.),  Ill  Pac.  Rep.  942;  s.  c.,  25  Okl. 
344,  106  Pac.  Rep.  830. 

e  California.  See  Carlson  v.  Sheehan,  157  Cal.  692,  695,  109  Pac. 
Rep.  29. 

Colorado.  See  Lombard  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92 
Pac.  Rep.  695. 

Oregon.     See  Adams  v.  Mackenzie  (Oreg.),   114  Pac.  Rep.  460. 

Washington.  Action  against  personal  representative  of  owners  See 
MacDonald  v.  O'Shea,  58  Wash.  169,  108  Pac.  Rep.  436,  438. 

7  Washington.     Compare    Evans   v.    Oregon    &   W.    R.   Co.,    58    Wash. 
429,  108  Pac.  Rep.  1095. 

8  California.     Carlson  v.  Sheehan,  157  Cal.  692,  695,  109  Pac.  Rep.  29. 
e  Oklahoma.     See  Jones  v.  Balsley  (Okl.),  Ill  Pac.  Rep.  942;  s.  c.,  25 

Okl.  344,  106  Pac.  Rep.  830. 

10  Washington.      Tsutakawa    v.    Kumamoto,    53    Wash.    231,    102    Pac. 
Rep.  766r  101  Pac.  Rep.  869. 

11  Oklahoma.     See  Jones  v.   Balsley    (Okl.),    Ill   Pac.   Rep.   942;   s.   c., 
25  Okl.  344,  106  Pac.  Rep.  830. 

12  California.     Action   to  reach   funds   in    the  hands   of   municipality 
for  sewer  work.     See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505, 
508,  97  Pac.  Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 


229  REMEDIES.  §§642-648 

Additional  matter  to  foot-note  29. 13 

§  643.     Same.    Actions  by  owner's  laborers  and  material- 
men. 

§  644.     Same.     Actions  by  owner. 
Additional  matter  to  foot-note  32. 14 
Additional  matter  to  foot-note  36. 15 

§  645.    Provisional  remedies.     Statutory  provision. 

§  646.     Same.    Attachment. 
Additional  matter  to  foot-note  41. 16 

§  647.     Same.    Materials  exempt  from  attachment. 
Additional  matter  to  foot-note  44. 17 

§  648.     Same.     Injunction. 
Additional  matter  to  foot-note  45. 18 


is  California.  See  Hubbard  v.  Lee,  10  Cal.  App.  477,  478,  102  Pac. 
Rep.  528;  s.  c.,  6  Cal.  App.  602,  92  Pac.  Rep.  744. 

14  California.  Damages  for  failure  to  deliver  material:  Fairchild- 
Gilmore-Wilton  Co.  v.  Southern  R.  Co.,  158  Cal.  264,  110  Pac.  Rep.  951. 

Washington.  Action  upon  decease  of  contractor  against  personal 
representative:  See  MacDonald  v.  O'Shea,  58  Wash.  169,  108  Pac. 
Rep.  436,  438. 

is  Washington.  Action  on  bond:  See  Monro  v.  National  S.  Co.,  47 
Wash.  488,  92  Pac.  Rep.  280. 

See   §§  605   et  seq.,  this   Supplement,  ante. 

16  California. '   Attachment  now  allowed  claimant  under   §  1197   Code 
Civ.  Proc.,  as  amended  Stats.  &  Amdts.  1911,  pp.  1313  et  seq. 

Montana.  Attachment:  See  Eisenhauer  v.  Quinn,  36  Mont.  368,  93 
Pac.  Rep.  38. 

17  Washington.     Attachments  for  fraud  "in  contracting  debt."  Where 
materials  not  used  in  performance  of  contract  are  charged  up  against 
the  building  at  the  instance  of  the   contractor  attempting  to   dispose 
of  his  property:    See  Gordon  v.  Gillespie,  58  Wash.  62,   109  Pac.  Rep. 
109,   111. 

is  \  <-\\  Mexico.  Enjoining  sale  of  property  upon  which  lien  has  been 
foreclosed:  See  Robertson  v.  Mine  &  S.  S.  Co.  (N.  M.),  110  Pac.  Rep. 
1037. 


§§  649,  650         MECHANICS'    LIENS— SUPPLEMENT.  230 


CHAPTER  XXXIII. 

TIME,  PLACE,  AND  MANNER  OF  COMMENCING  ACTIONS  TO 
FORECLOSE  LIEN. 

§  649.    Time  of  commencing  actions  to  foreclose. ' 
Additional  matter  to  foot-note  1.- 
Additional  matter  to  foot-note  2.3 

§  650.     Same.     Action  to  foreclose  lien  upon  the  fund.4 

1  See  {  605,  this  Supplement,  ante. 

2  California.      Action    for    dantagen    for    abandonment    against    con- 
tractor and    his   sureties    Is   not   prematurely    brought,   because    com- 
menced before  the  building  is  completed;  as  the  cause  of  action  ac- 
crues as   soon   as   the   contractor  abandons   the   contract:     Baclgalupl 
v.  Phoenix  B.  &  C.  Co.  (Cal.  App.),  112  Pac.  Rep.  892,  894.     See  Taylor 
v.  North  P.  C.  R.  R.  Co.,  66  Cal.  317. 

Ohio.  See  Cincinnati  &  S.  Ry.  Co.  v.  Village  of  Carthage,  36  Ohio 
St.  631. 

California.  Limitation  of  action  In  «u!t  on  garnishment  by  way  of 
execution  at  the  instance  of  original  contractor's  subclaimants  who 
have  failed  to  establish  their  liens,  but  who  have  recovered  personal 
judgment  against  original  contractor:  See  Nordstrom  v.  Corona  City 
W.  Co.,  155  Cal.  206.  214,  100  Pac.  Rep.  242. 

K n  11  NUM.     See  Sutherlin  v.  Chesney  (Kan.),  116  Pac.  Rep.  254. 

Statute  of  limitation*  upon  an  obligation  growing;  immediately 
out  of  written  contract  regarding  drilling  of  wells:  See  Bailey  v. 
Fredonia  G.  Co.,  82  Kan.  746,  109  Pac.  Rep.  411,  413. 

Washington.  Action  on  contractor's  bond!  See  Martin  v.  Empire 
State  S.  Co.,  53  Wash.  290,  101  Pac.  Rep.  876;  Sheard  v.  United  States 
F.  &  G.  Co..  58  Wash.  29,  107  Pac.  Rep.  1024,  1026. 

3  California.     Where  the  claim  of  lien  was  filed  December  28,  1906, 
and  the  complaint  was   tiled   March   27,   1907,   it  was   filed   within   the 
ninety  days  described  by  |  1190,  Code  Civ.  Proc.:  Lucas  v.  Gobbi,   10 
Cal.  App.  648,  652,  103  Pac.  Rep.  157. 

Washington.     Rees  v.  Wilson,  50  Wash.  339,  97  Pac.  Rep.  245. 

Failure  to  make  real  owner  party  until  after  time  limited  by  statute 
owing  to  fraud  of  owner:  See  Rees  v.  Wilson,  50  Wash.  339,  97  Pac. 
Rep.  245. 

Washington.  Special  limitation  of  time  to  commence  action t  See 
Jensen  v.  Sheard,  49  Wash.  593,  96  Pac.  Rep.  2;  Sheard  v.  United 
States  F.  &  G.  Co.,  58  Wash.  29,  107  Pac.  Rep.  1024. 

Limitation  on  second  claim  flled  and  action  on  second  claim  within 
statutory  period,  action  not  barred:  Lindley  v.  McGlauflln,  58  Wash. 
636,  109  Pac.  Rep.  118,  120;  s.  c.,  57  Wash.  581,  107  Pac.  Rep.  355. 

4  See  SI  547  et  seq..  Supplement,  ante. 


231  COMMENCEMENT   OF   ACTIONS.  88  651-655 

§  651.  Place  of  commencing  action  to  foreclosure.  Gen- 
erally. A  mechanic's  lien  is  enforceable  only  in  the  state  by 
the  statute  of  which  it  is  created ;  if  the  rule  were  otherwise, 
it  would  have  the  effect  of  attributing  to  the  decree  the 
force  and  effect  of  a  judgment  in  rem  by  a  court  having  no 
jurisdiction  over  the  res.5 

Additional  matter  to  foot-note  II.6 

§  652.     Same.     Statutory  provision. 

§  653.     Same.    Jurisdiction  of  superior  court. 
Additional  matter  to  foot-note  17. 7 

§  654.     Same.    Amount  less  than  jurisdictional  limit.   But 

where  the  complaint  fails  to  state  a  cause  of  action  for  the 
foreclosure  of  the  lien,  the  superior  court  has  no  jurisdic- 
tion if  it  does  show  a  cause  of  action  for  a  money  judgment 
for  less  than  three  hundred  dollars.8 
Additional  matter  to  foot-note  18.9 

§  655.  Same.  Foreclosure  of  lien  in  Federal  Courts.  The 
Circuit  Court  of  the  United  States  has  jurisdiction  to  enter- 
tain a  bill  in  equity  to  foreclose  a  mechanic's  lien,  although 

5  Burton-Lingo   Co.   v.   Patton    (N.   M.),   107   Pac.   Rep.    679,    680,    681; 
Carpenter  v.  Strange,  141  U.  S.  105,  11  Sup.  Ct.  960,  bk.  35,  L.  ed.  101; 
Fall  v.  Eastin,  215  U.  S.  1,  30  Sup.  Ct.  Rep.  3,  54  L.  ed.  — ;  Davis  v.  Head- 
ley,   22   N.   J.   Eq.   115;   Cooley  v.   Scarlet,   38   111.   316,   87   Am.   Dec.    298; 
Gardner  v.   Ogden,   22  N.  Y.  227,   78  Am.   Dec.   192. 

6  Oklahoma.     Change    of    venue:     See    Jones    v.    Balsley    (Okl.),    Ill 
Pac.   Rep.   942;   s.   c.,  25   Okl.   344,   106   Pac.   Rep.   830. 

7  California.      See    Goldtree   v.    City    of   San    Diego,    8    Cal.    App.    505, 
508,  97  Pac.  Rep.   216;   s.  c.,   8  Cal.  App.   512,   97  Pac.  Rep.   218. 

Oklahoma.  Jurisdiction  of  District  Court:  See  Dallas  v.  Pitch  - 
ford  (Okl.),  115  Pac.  Rep.  1110. 

8  California.     Davis  v.   Treacy,   8  Cal.  App.   395,   97   Pac.   Rep.   78. 

9  California.     See  Paterson   v.   McDonald    (Cal.   App.),   110   Pac.   Rep. 
465,  466. 

Utah.  See  Volker-Scowcroft  L.  Co.  v.  Vance  (Utah),  103  Pac.  Rep. 
970,  972;  s.  c.,  33  Utah  74,  88  Pac.  Rep.  896. 

Washington.  When  lien  on  steam  shovel  fails,  if  pleadings  and 
evidence  justify  it,  court  has  jurisdiction  to  render  money  judgment: 
Pacific  I.  &  S.  Works,  55  Wash.  149,  104  Pac.  Rep.  151.  As  to  ap- 
pellate jurisdiction:  See  Hall  v.  Cowen,  51  Wash.  295,  98  Pac.  Rep. 
670. 


§§  655-657          MECHANICS'    LIENS— SUPPLEMENT.  232 

the  state  statute  may  give  an  action  at  law,  especially  where 
there  are  conflicting  liens  upon  the  property,  which  a  court 
of  equity  alone  can  adjust.10  But  it  can  not  foreclose  such 
lien  on  its  law  side.11 

jl  656.     Manner  of  commencing  actions  to  foreclose. 
Additional  matter  to  foot-note  20.12 

§  657.     Same.     Summons. 
Additional  matter  to  foot-note  21. 13 
Additional  matter  to  foot-note  22.14 


loHealey  I.  M.  Co.  v.  Green  (C.  C.,  N.  C.).  181  Fed.  Rep.  890,  893: 
Sheffield  F.  Co.  v.  Wltherow,  149  U.  S.  574,  13  Sup.  Ct.  Rep.  936, 
37  L.  ed.  853. 

11  Armstrong  Cork   Co.   v.   Merchants   R.   Co.    (C.   C.,  Mo.),   171    Fed. 
Rep.  778.  779;  s.  c.   (C.  C.  A.),  184  Fed.  Rep.   199. 

An  to  jurlndlctlon  of  Federal  Court*  to  enforce  mechanic*'  lien*: 
See  Gilchrist  v.  Helena  H.  S.  &  S.  R.  Co.,  58  Fed.  Rep.  708. 

A*  to  jurliidlctlon  of  *tate  court*  to  foreclose  Hen  on  interest  of 
lessee  of  school  lands,  fee  being  in  United  States,  no  attempt  being 
made  to  foreclose  lien  on  interest  of  the  Federal  Government:  Jar- 
tell  v.  Block,  19  Okl.  467,  92  Pac.  Rep.  167,  169. 

12  Insufficient  commencement  of  action  on  law  Hide  of  Circuit  Court: 
Armstrong  Cork  Co.  v.  Merchants  R.  Co.  (C.  C.,  Mo.),  184  Fed.  Rep.  199. 

is  California.  Service  of  Mtimmon*  by  publication!  See  People  v. 
Patrick  Mulcahey  (Cal.  Dec.  27,  1910). 

Colorado.  Summon*  need  not  be  iHnned  on  claimant*'  cro»*-eom- 
plalnt  to  foreclose  lien  nor  need  it  be  served  upon  principal  con- 
tractor: Barnes  v.  Colorado  Springs  and  C.  C.  D.  Ry.  Co.,  42  Colo. 
461,  94  Pac.  Rep.  570,  573. 

Service  of  nummon*  upon  copartnerxhlp  and  binding  interests  of 
copartnership:  See  Barnes  v.  Colorado  Springs  and  C.  C.  D.  Ry.  Co., 
42  Colo.  461,  94  Pac.  Rep.  570,  572. 

Idaho.  Constructive  *ervlce  not  authorising;  per*onal  or  money 
Judgment:  Naylor  &  Norlin  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho 
722,  95  Pac.  Rep.  827,  828.  96  Pac.  Rep.  573. 

New  Mexico.  Without  notice  or  opportunity  to  be  heard,  or  serv- 
ice of  process,  judgment  of  foreclosure  absolutely  void  against  owner: 
Robertson  v.  Mine  &  S.  S.  Co.  (N.  M.),  110  Pac.  Rep.  1037. 

Oklahoma.  Subcontractor  may  recover  amount  due  his  subclaim- 
ant  not  served  with  process,  but  no  judgment  in  favor  of  such  sub- 
claimants  can  be  rendered  if  the  court  has  not  acquired  jurisdiction 
of  such  subclaimant,  although  he  may  be  party  to  action:  Albert! 
v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 

Washington.  Waiver  of  defect*  In  *ummon*  or  service:  See  Bel- 
lingham  v.  Linck,  53  Wash.  208,  101  Pac.  Rep.  843. 

14  California.  Sufficient  affidavit  of  *ervlce  of  •ummon*  by  publica- 
tion! See  Roberts  v.  Jacob,  154  Cal.  307,  97  Pac.  Rep.  671. 

Colorado.  Sufficient  return  of  service  of  Mummon*  on  partner: 
See  Barnes  v.  Colorado  Springs  and  C.  C.  D.  Ry.  Co.,  42  Colo.  461, 
94  Pac.  Rep.  570.  572. 


233  COMMENCEMENT    OF   ACTIONS. 

§  658.    Same.    Lis  pendens. 

Additional  matter  to  foot-note  23. 13 


15  l.i.x  pendens: 

Arizona.     See   Brandt   v.    Scrlbner    (Ariz.),    108   Pac.   Rep.    492. 
Colorado.     See  Buckhorn   P.   Co.  v.   Consolidated   P.   Co.    (Colo.),    108 
Pac.  Rep.  27. 

Washington.     Compare  Biggs  v.  Hoffman  (Wash.),  Ill  Pac.  Rep.  576. 


§§  659-663          MECHANICS'    LIENS— SUPPLEMENT.  234 


CHAPTER  XXXIV. 
PARTIES. 

$  659.    Parties  plaintiff.     Statutory  provision. 
Additional  matter  to  foot-note  I.1 

|j  660.     Same.     Object  of  provision.2 
§  661.     Same.     Raising  objection. 

$  662.     Parties  defendant.     Generally.3 
Additional  matter  to  foot-note  II.4 

§  663.  Same.  Owner.  The  owner  must  be  made  a  party 
to  the  action  to  foreclose  a  mechanic's  lien,  if  his  property 
is  to  be  made  chargeable  wtth  the  claim  for  which  the  lien 
is  given.5 

Additional  matter  to  foot-note  14.': 

Additional  matter  to  foot-note  15." 

1  Arizona.     Suit   by   iiHMignee   of  claim:     Harper   v.    Independence   D. 
Co.    (Ariz.),   108   Pac.   Rep.   701,   703. 

I\:IMS:IS.  Prenldent  and  not  corporation  real  party  In  Interest.  See 
Shores  v.  United  S.  Co.  (Kan.),  114  Pac.  Rep.  1062. 

2  See   §§  460  et  seq.,   this  Supplement,  ante. 

3  See  notes,  post,  this  chapter. 

4  Colorado.     Bringing   In    other   partner*   defendant:     See    Barnes   v. 
Colorado   Springs   and    C.    C.    D.    Ry.   Co.,    42   Colo.    461,    94    Pac.    Rep. 
570.   572. 

Wanhlngton.  Contractor  and  hln  nurety  an  partlen  defendant.  See 
City  of  Spokane  v.  Costello,  57  Wash.  183,  106  Pac.  Rep.  764,  767. 

All  pen»onn  connected  with  contract  conceived  to  be  liable  may  be 
joined  as  defendants:  Fransloll  v.  Thompson,  65  Wash.  259,  104 
Pac.  Rep.  278,  280. 

•">  California.  Los  Angeles  County  v.  Winans,  13  Cal.  App.  234, 
109  Pac.  Rep.  640,  650. 

e  California.  See  Holt  Mfg.  Co.  v.  Collins,  154  Cal.  265,  270,  97  Pac. 
Rep.  516  (threshing  machine). 

Idaho.  Right  of  wife  to  defend:  See  Larson  v.  Carter,  14  Idaho 
511,  94  Pac.  Rep.  825,  827. 

\Yanlilngton.  Owner  deceiving  claimant  made  party  after  timf 
limited  for  commencing  action:  See  Rees  v.  Wilson,  50  Wash.  339, 
97  Pac.  Rep.  245. 

7  \Vanhlngton.  Hunband  and  wife  as  parties  defendant:  See  Ras- 
mussen  v.  Liming,  50  Wash.  184,  96  Pac.  Rep.  1044. 


235  PARTIES.  §§  664-669 

§  664.     Same.    Employers.     Copartnerships. 

Additional  matter  to  foot-note  17. 8 
Additional  matter  to  foot-note  18.9 

§  665.  Same.  Contractor.  It  is  immaterial  to  show,  so 
far  as  the  rights  of  lien  claimants  are  concerned,  that  the 
contractor  named  in  and  who  executed  the  original  contract 
was  a  mere  figure-head,  and  that  other  persons,  even  those 
seeking  to  assert  liens,  or  who  were  sureties  on  the  contrac- 
tor's bond,  are  the  real  parties  in  interest.10 

Additional  matter  to  foot-note  19.11 

Additional  matter  to  foot-note  20. 12 

§  666.    Same.     Subcontractor.13 

§  667.     Same.    Lien  claimants. 
Additional  matter  to  foot-note  23. 14 

§  668.     Same.     Holders  of  prior  interests  and  liens.15 
Additional  matter  to  foot-note  25. 16 
Additional  matter  to  foot-note  30. 17 

§  669.     Same.     Interests  pendente  lite.18 

s  Oregon.  Mechanic's  lien  filed  by  partnership,  copartner  not  neces- 
sary party:  See  Ban  v.  Columbia  S.  R.  Co.,  117  Fed.  Rep.  21,  54  C.  C. 
A.  407,  reversing  s.  c.,  109  Fed.  Rep.  499. 

o  Washington.     Administrator   of   contractor   and   surety   as    parties: 

See  City  of  Spokane  v.  Costello,  57  Wash.   183,  106  Pac.  Rep.  764,   767. 

10  California.     Barrett-Hicks    Co.    v.    Glas,    99    Pac.    Rep.    857,    861; 
s.  c.,   9  Cal.  App.  491,   99  Pac.  Rep.  856,   111   Pac.  Rep.   760;   s.   c.,  sub 
nom.  Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

11  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  521, 
97  Pac.  Rep.   414,   420. 

Washington.  Contractor  and  wife  as  parties  defendant:  See  Ras- 
mussen  v.  Liming,  50  Wash.  184,  96  Pac.  Rep.  1044. 

Contractor's  administrator  as  party:  See  City  of  Spokane  v.  Cos- 
tello, 57  Wash.  183,  106  Pac.  Rep.  764,  767. 

12  Oklahoma.      Contractor     necessary    party:      Alberti     v.     Moore,     20 
Okl.  78,  93  Pac.  Rep.  543,  546. 

is  See  §§  66-76,  generally,  Treatise  and  Supplement,  as  to  subcon- 
tractors. 

14  Oklahoma.     See  Alberti  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 

15  See  '.'Priorities,"   §§  486  et  seq.,  this  Supplement. 

16  Washington.   Compare  Biggs  v.  Hoffman  (Wash.),  Ill  Pac.  Rep.  576. 

17  California.     Holt   Mfg.    Co.    v.    Collins,    154    Cal.    265,    270,    97    Pac. 
Rep.   516. 

is  See  Lis  Pendens,  §  658,  this  Supplement,  ante. 


§§  670-672          MECHANICS'    LIENS — SUPPLEMENT.  236 


CHAPTER  XXXV. 

COMPLAINT. 

§  670.     Complaint.     In  general. 
Additional  matter  to  foot-note  I.1 

§  671.  Stating  cause  of  action.2  The  better  practice  is 
to  allege  the  facts  as  they  occurred,  and  leave  the  Court  to 
draw  the  conclusion  that  the  property  is  subject  to  the  lien.3 

Additional  matter  to  foot-note  5.4 

Additional  matter  to  foot-note  6.5 

§  672.     General  rules  of  pleading  contract. 
Additional  matter  to  foot-note  9.6 
Additional  matter  to  foot-note  II.7 
Additional  matter  to  foot-note  12.8 


1  California.     Action     by    owner    agalnat     contractor'*    •uretyi     See 

Klokke  v.  Raphael,  8  Cal.  App.  1,  4,  96  Pac.  Rep.  392. 

Colorado.  Alleging  cause  of  action  on  contractor'*  bondi  See 
State  Board  of  Agriculture  v.  Dlmlck,  46  Colo.  609,  105  Pac.  Rep.  1114. 

Foreign  corporation;  alleging  performance  of  prereqnlnlte*  for  do- 
Ing  buMlneMi 

Idaho.  See  Valley  L.  Co.  v.  Eriessel,  13  Idaho  662,  93  Pac.  Rep. 
765,  771. 

Washington.  North  Star  T.  Co.  v.  Alaska-Yukon  Pac.  Exposition 
(Wash.).  115  Pac.  Rep.  855. 

2  Oregon.     Alleging    "valid    lien*"    in    complaint    of    mortgagee    who 
paid  same  under  terms  of  mortgage,  a  conclusion  of  law:     Equitable 
S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac.  Rep.  447,  460. 

s  California.  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  537. 

4  Oregon.  Coffey  v.  Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079:  s.  c., 
52  Oreg.  545,  97  Pac.  Rep.  1031;  s.  c.,  52  Oreg.  546,  97  Pac.  Rep.  1082. 

s  California.  Seebach  v.  KUhn,  9  Cal.  App.  485,  490,  99  Pac.  Rep. 
723. 

Colorado.  Lombard  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92  Pac. 
Rep.  965,  966. 

e  California.  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  237,  107  Pac. 
Rep.  150.  See  Naylor  v.  Adams  (Cal.  App.),  115  Pac.  Rep.  335. 

7  California.     Boyd   v.    Bargagliotti,    12    Cal.   App.    228,    237,   107   Pac. 
Rep.  150. 

Pleading  modification  of  contracts  See  Reed  v.  Marshall,  12  Cal. 
App.  697,  700,  108  Pac.  Rep.  719. 

8  California.     "The  general  rale  of  law  is  that  while  a  special  con- 


237 


COMPLAINT. 


§  673.     Same.     Common  counts. 

Additional  matter  to  foot-note  16.9 
Additional  matter  to  foot-note  17.  10 
.     Additional  matter  to  Paragraph  I.11 
Additional  matter  to  Paragraph  2.12 

tract  remains  open  —  that  is,  unperformed  —  the  party  whose  part  of 
it  has  not  been  done  cannot  sue  in  indebitatus  assumpsit  to  recover 
compensation  for  what  he  has  done  until  the  whole  is  completed." 

"But  the  exceptions  from  that  rule  are  in  cases  in  which  something 
has  been  done  under  a  special  contract,  but  not  in  strict  accordance 
with  that  contract.  In  such  a  case  the  party  cannot  recover  the 
remuneration  stipulated  for  in  the  contract  because  he  has  not  done 
that  which  was  to  be  the  consideration  of  it." 

"Still,  If  the  other  party  has  derived  any  benefit  from  the  labor 
done,  it  would  be  unjust  to  allow  him  to  retain  that  without  paying 
anything.  The  law,  therefore,  implies  a  promise  on  his  part  to  pay 
such  remuneration  as  the  benefit  conferred  is  really  worth;  and,  to 
recover  it,  an  action  in  indebitatus  assumpsit  is  maintainable.  In 
such  an  action,  the  defendant  may  be  allowed  by  way  of  counter- 
claim or  setoff  to  recoup  himself  in  damages  for  injuries  or  detri- 
ment sustained  by  him  because  of  plaintiff's  failure  to  comply  with 
the  obligations  imposed  upon  him  by  the  contract":  Lacy  Mfg.  Co. 
v.  Los  Angeles  G.  &  E.  Co.,  12  Cal.  App.  37,  43,  quoting  from  the 
opinion  of  Justice  Wayne,  in  Dermott  v.  Jones,  23  How.  (U.  S.),  220. 
See  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  237,  107  Pac.  Rep.  150. 

Utah.     See  Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.   1004. 

9  California.     Boyd  v.  Bargagliotti,   12  Cal.  App.   228,  237;  Carlson  v. 
Sheehan,  157  Cal.  692,  695,  109  Pac.  Rep.  29;  Lacy  Mfg.  Co.  v.  Los  An- 
geles G.    &   E.   Co.,    12   Cal.   App.    37,   41,   106   Pac.   Rep.    413.     See,   gen- 
erally, Los  Angeles  P.  B.  Co.  v.  Higgins,   8  Cal.  App.  514,   520,   97  Pac. 
Rep.   414,   420. 

Colorado.  Lombard  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92  Pac. 
Rep.  965,  966.  See  Harvey  v.  Denver  &  R.  G.  R.  Co.,  44  Colo.  258, 
99  Pac.  Rep.  31,  33. 

Oregon.  Promise  to  pay  need  not  be  alleged  In  indebitatus  as- 
sumpsit: Pioneer  H.  Co.  v.  Farrin  (Oreg.),  107  Pac.  Rep.  456. 

Utah.     See  Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.   1004. 

Account  stated: 

California.  See  Stimson  M.  Co.  v.  Hughes  Mfg.  Co.,  8  Cal.  App.  559, 
97  Pac.  Rep.  322. 

Idaho.  See  Naylor  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  789,  96 
Pac.  Rep.  573,  578;  s.  c.,  95  Pac.  Rep.  827. 

10  Colorado.     Lombard  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92  Pac. 
Rep.    695. 

Utah.     See  Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.   1004,  1007. 

11  Colorado.     Lombard  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92  Pac. 
Rep.    695. 

12  California.     Seebach  v.   Kuhn,   9   Cal.   App.    485,   490,    99   Pac.    Rep. 
723. 

Colorado.  Lombard  v.  Overland  D.  &  R.  Co.,  41  Colo.  253,  92  Pac. 
Rep.  695. 


§§  674-676  MECHANICS'    LIENS — SUPPLEMENT.  238 

§  674.  Same.  Technical  defects  cured  by  acts  of  the  par- 
ties. 

Additional  matter  to  foot-note  18.1:>> 

§  674a.  Same.  Estoppel.  Waiver.  If  a  litigant  relies 
upon  matter  of  waiver  or  estoppel  to  sustain  his  cause  of 
action  or  defense,  he  must  specially  plead  such  matter.14 
But  where  the  pleader  is  without  knowledge  that  his  demand 
must  ultimately  rest  upon  estoppel,  he  is  not  obliged  to 
plead  it.15 

§  675.     Same.     Express  contract. 
Additional  matter  to  foot-note  20. 1G 
Additional  matter  to  foot-note  21. 17 

§  676.  Same.  Conditions  precedent.  As  to  conditions 
precedent  in  a  contract,  under  the  statute,  it  may  be  stated 
generally  that  the  party  duly  performed  all  the  conditions 
on  his  part.18 

Additional  matter  to  foot-note  22. in 


is  California.  See  Lacy  Mfg.  Co.  v.  Los  Angeles  G.  &  E.  Co..  12  Cal. 
App.  37,  41.  106  Pac.  Rep.  413. 

Oregon.  See  Mclnnls  v.  Buchanan,  53  Oreg.  229,  99  Pac.  Rep.  929. 
930. 

14  California.  Seebach  v.  Kuhn,  9  Cal.  App.  485,  489,  99  Pac.  Rep. 
723;  Chapman  v.  Hughes,  134  Cal.  641,  58  Pac.  Rep.  298,  60  Pac.  Rep. 
974,  66  Pac.  Rep.  982. 

Colorado.     Glllett  v.  Young,  45  Colo.  562,  101  Pac.  Rep.  766,  768. 

\\iiMliitiKtoii.  The  facts  constituting  equitable  estoppel  should  be 
pleaded,  not  the  conclusion:  City  of  Spokane  v.  Costello,  57  Wash. 
183,  106  Pac.  Rep.  764. 

is  California.  Hubbard  v.  Lee,  6  Cal.  App.  602,  609,  92  Pac.  Rep. 
744;  s.  c.,  10  Cal.  App.  477,  102  Pac.  Rep.  528. 

16  California.  See  Lucas  v.  Gobbi,  10  Cal.  App.  648,  652,  103  Pac. 
Rep.  157.  Compare  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac. 
Rep.  760,  764;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  a.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

IT  California.  See  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  237,  107 
Pac.  Rep.  150. 

is  California.  Needham  v.  Chandler,  8  Cal.  App.  124,  127,  96  Pac. 
Rep.  325.  See  City  S.  &  I.  Co.  v.  Marysville,  155  Cal.  419.  432,  101 
Pac.  Rep.  308. 

IB  California.     Coplew  v.  Durand,   153  Cal.   278,  279,   95  Pac.  Rep.   38. 

Arbitration  an  condition  precedents  Burke  v.  Dittus,  8  Cal.  App. 
175.  178.  96  Pac.  Rep.  330. 


239  COMPLAINT.  §§  676-682 

Additional  matter  to  foot-note  23. 20 
§677.     Same.     Completion  of  building.21 

§  678.     Same.     Certificate  of  architect. 
Additional  matter  to  foot-note  26. 22 

§  679.     Same.     Prevention  of  performance. 

Additional  matter  to  foot-note  29. 23 

§  680.  Same.  Debt  due.  The  averment  that  a  specific 
sum  "is  now  due  and  owing,"  although  a  statement  of  a 
legal  conclusion,  is  sufficient  to  support  a  judgment  by  the 
court.24  It  is  not  necessary  to  allege  that  there  is  anything 
due  from  the  owner  to  the  contractor,  where  the  lien  is  di- 
rect.25 

§  681.     Same.    Non-payment  of  indebtedness  to  plaintiff. 
Additional  matter  to  foot-note  33. 26 

§  682.     Same.    Premature  payment  to  contractor  by  owner. 

Additional  matter  to  foot-note  35. 2T 


Oregon.  See  Mclnnis  v.  Buchanan,  53  Oreg.  229,  99  Pac.  Rep. 
929,  930. 

Washington.     Owen  v.  Casey,  48  Wash.   673,  94  Pac.  Rep.   473. 

20  California.     Coplew  v.  Durand,   153  Cal.   278,   279,  95  Pac.   Rep.   38. 
Montana.      Piper  v.  Murray  (Mont.),  115  Pac.  Rep.  669,  671. 

21  See    §§  334    et   seq.,    this    Supplement,   ante. 

22  California.     City  S.  I.  Co.  v.  Marysville,  155  Cal.  419,  432,  101  Pac. 
Rep.  308. 

Montana.     Piper  v.  Murray    (Mont.),   115   Pac.   Rep.   669,   671. 

Oregon.  The  complaint  need  not  allege  in  terms  the  presentation 
of  such  certificate:  Mclnnis  v.  Buchanan,  53  Oreg.  229,  99  Pac.  Rep. 
929,  930. 

23  California.      See   Carlson    v.    Sheehan,    157    Cal.    692,    695,    109    Pac. 
Rep.   29. 

24  California.     Burke  v.  Dittus,  8  Cal.  App.  175,  178,  96  Pac.  Rep.  330. 

25  California.     Western    L.    &    M.    Co.    v.    Merchants'    A.    Co.,    13    Cal. 
App.  4,  108  Pac.  Rep.  891,  894. 

26  See    §  680,    this   Supplement,  ante,   and   see   §  689,    this   Supplement, 
post. 

27  California.     See    Lucas    v.    Rea,    10    Cal.    App.    641,    102    Pac.    Rep. 
822,  101  Pac.  Rep.  537. 


§§  683-690          MECHANICS'    LIENS—  SUPPLEMENT.  240 

>i  683.     Notice  to  owner. 

Additional  matter  to  foot-note  36.  28 

£  684.     Same.     Indebtedness  due  contractor  from  owner 
at  time  of  notice. 

Additional  matter  to  foot-note  40.29 

i  685.     Same.     Complaint    by    subcontractor's    material- 
man.30 

§  686.     Same.     Notice     to     contractor.     Action     against 


S  687.     Request  of  owner.     Subclaimant. 

§  688.     Contract  alleged  presumed  to  be  non-statutory. 
Additional  matter  to  foot-note  44.32 

§  689.  Void  contract.  It  is  not  necessary  to  allege  that 
anything  was  due  from  the  owner  to  the  contractor  at  the 
time  of  filing  the  claim  of  lien  where  the  lien  became  direct 
by  reason  of  the  failure  to  comply  with  the  requirements  of 
the  statutory  original  contract.33 

§  690.  Same.  Agreed  price.  Value.  Where  the  plaintiff 
does  not  recover  upon  an  express  statutory  original  con- 
tract which  has  not  been  filed  and  was  therefore  void,  but 

28  California.     Compare  Klokke  v.  Raphael,  8  Cal.  App.  1,  4,  96  Pac. 
Rep.   392. 

29  California.     Beck  v.  Schmidt,  13  Cal.  App.   448,  110  Pac.  Rep.   455, 
457;  Irwln  v.   Insurance  Co.   of  N.  A.    (Cal.  App.),    116   Pac.  Rep.   294. 
See  Trels  v.  Berlin  D.  W.  &  L.  Co.   (Cal.  App.),  105  Pac.  Rep.  275,  276: 
Burke  v.  Dlttus.  8  Cal.  App.  175,  178,  96  Pac.  Rep.  330. 

Mali.     Chesney  v.  Chesney.  33  Utah  503,  94  Pac.  Rep.  989. 

30  See  "Material-man,"  $$77  et  seq.,  this  Supplement,  ante. 

31  See  if  547  et  seq..  this  Supplement,  ante. 

-•California.  See  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  537. 

33  California.  Western  L.  &  M.  Co.  v.  Merchants'  A.  Co..  13  Cal. 
App.  4.  108  Pac.  Rep.  891,  894;  Lucas  v.  Gobbi.  10  Cal.  App.  648,  650, 
103  Pac.  Rep.  157. 

Statutory  original  contract  abolished  by  Stats.  &  Amdts.  1911,  pp. 
1313.  et  seq. 


241  COMPLAINT.  §§  690-695 

upon  a  quantum  meruit,  the  validity  of  the  contract  as  be- 
tween the  parties  is  not  called  into  question.34 
Additional  matter  to  foot-note  50.35 

§  691.  Same.  Request  of  owner.  Where  the  contract 
was  void  and  the  lien  direct,  it  was  held  sufficient  to  allege 
that  the  material  was  furnished  through  the  contractor  as 
the  agent  of  the  owner,36  or  the  plaintiff  was  at  liberty  to 
allege  the  facts  as  they  occurred  or  to  aver  a  direct  agree- 
ment with  the  owner.37 

Additional  matter  to  foot-note  51. 38 

§  692.     Ownership. 

Additional  matter  to  foot-note  52.39 

§  693.    Knowledge  of  improvement  by  owner. 
Additional  matter  to  foot-note  57. 40 

§  694.    Notice  of  non-responsibility.41 

§  695.  Agency.  Authority  of  person  causing  improve- 
ment to  be  made. 

Additional  matter  to  foot-note  62.42 

34  California.     Lacy   Mfg.    Co.    v.    Los   Angeles    G.    &   E.    Co.,    12    Cal. 
App.   37,   43,  106  Pac.   Rep.   413. 

35  California.     Coghlan  v.  Quartararo   (Cal.  App.),  115  Pac.  Rep.   664, 
666.     See    Los    Angeles    P.    B.    Co.    v.    Higgins,    8    Cal.    App.    514,    520, 
97  Pac.  Rep.   414,  420. 

36  California.     Lucas   v.   Gobbi,   10   Cal.   App.    648,    650,    103   Pac.   Rep. 
157. 

37  California.     Lucas    v.    Rea,    10    Cal.    App.    641,    102    Pac.    Rep.    822, 
101  Pac.  Rep.  537. 

38  California.     Lucas    v.    Rea,    10    Cal.    App.    641,    102    Pac.    Rep.    822, 
101  Pac.  Rep.  537. 

39  California.     See    Cooley    v.    Miller    &    Lux,    156    Cal.    510,    105    Pac. 
Rep.   981,  986, 

40  Nevada.     See    Tonopah   L.    Co.   v.    Nevada   A.    Co.,    30   Nev.    445,   97 
Pac.  Rep.   636,  639. 

Oregon.  Litherland  v.  S.  Morton  Cohn  R.  E.  &  I.  Co.,  54  Oreg.  71, 
100  Pac.  Rep.  1,  102  Pac.  Rep.  303. 

41  See   §§  469   et  seq.,  this  Supplement,   ante; 

42  Oregon.     Litherland  v.  S.  Morton  Cohn  R.  E  &  I.  Co.,  54  Oreg.  71, 
100  Pac.   Rep.   1,   102  Pac.  Rep.   303. 

Bloom's  Sup. — 16 


§§  696-706          MECHANICS'    LIENS— SUPPLEMENT.  242 

§  696.    Same.    Mining  claim.43 

§  697.     Same.     Contractor  as  agent  of  owner. 
Additional  matter  to  foot-note  69.44 

§  698.     Same.     Allegations  to  bind  contractor.45 

§  699.    Materials. 

Additional  matter  to  foot-note  73. 46 

§  700.  Same.    Defect  in  complaint  waived. 

§  701.  Same.    Materials  furnished.    Dates.47 

§  702.  Employment.     Death  of  owner. 

§  703.  Nature  of  labor. 4» 

§  704.  Same.     Grading  and  other  work.48' 

§  705.  Object  of  labor.    Well.49 

§  706.     Claim  of  lien.    Time  of  filing.    The  complaint  must 
not  show  that  the  claim  of  lien  was  prematurely  filed.50 
Additional  matter  to  foot-note  87.51 
Additional  matter  to  foot-note  88.52 

43  See  Agency,   {§542  et  seq.,  this  Supplement,  ante. 

44  California.     And   likewise   where   the   statutory   original   contract 
was  void:     Lucas  v.  Gobbi,  10  Cal.  App.  648,  650,  103  Pac.  Rep.  157. 

Oregon.     See  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202,  204. 

45  See   "Contractor,"   §|  45   et  seq.,   this   Supplement,   ante. 

46  Colorado.     See    Barnes   v.    Colorado    Springs    &   C.    C.    D.    Ry.    Co., 
42   Colo.    461,   94    Pac.   Rep.    570,   573. 

New  Mexico.  See  Steams-Roger  Mfg.  Co.  v.  Aztec  M.  &  M.  Co., 
14  N.  M.  300,  93  Pac.  Rep.  706,  710. 

47  See  H  77  et  seq.,  this  Supplement,  ante. 

48  See  55  130  et  seq.,  this  Supplement,  ante. 

4»a  See  55  133,  139,  156  et  seq.,  this  Supplement,  ante. 

49  See  f  §  166  et  seq.,  this  Supplement,  ante. 

so  California.  Baker  v.  Lake  L.  C.  &  I.  Co.,  7  Cal.  App.  482,  484, 
94  Pac.  Rep.  778. 

51  Oregon.     Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202. 

.'.-'Oregon.  Coffey  v.  Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079;  a.  c., 
52  Oreg.  545,  97  Pac.  Rep.  181;  s.  c.,  52  Oreg.  546.  97  Pac.  Rep.  1082. 


243  COMPLAINT.  §§  707.712 

§  707.     Same.     Statutory  completion  for  purpose  of  filing. 
Additional  matter  to  foot-note  92.53 

§  708.  Same.  Alleging  contents  of  claim.  Generally. 
The  complaint  must  show  that  the  claim  of  lien  filed  con- 
tained the  matters  required  by  the  statute  and  was  filed  in 
the  proper  place  within  the  proper  time.54 

Additional  matter  to  foot-note  93.55 

§  709.     Same.     Name  of  owner. 

Additional  matter  to  foot-note  94.56 

§  710.  Same.  Description  of  property  to  be  charged  with 
the  lien. 

Additional  matter  to  foot-note  95. 57 

§  711.     Same.     Claim  of  lien  as  exhibit  to  complaint. 
Additional  matter  to  foot-note  96. 58 
Additional  matter  to  foot-note  97. 59 

§  712.  Same.  Terms,  time  given,  and  conditions  of  con- 
tract. 

Additional  matter  to  foot-note  98. 60 


Washington.     Cornelius    v.    Washington  ,  S.    L.,     52    Wash.     272,     100 
Pac..  Rep.  727,  729. 

53  California.     See   Lucas   v.    Gobbi,    10    Cal.    App.    648,    652,    103   Pac. 
Rep.   157. 

54  California.     Davis  v.  Treacy,  8  Cal.  App.  295,  97  Pac.  Rep.   78. 

55  Oregon.     Alleging    verification    of    claim:     See    Bohn    v.    Wilson, 
53  Oreg.  490,  101  Pac.  Rep.   202. 

Washington.     See    Cornelius    v.    Washington    S.    L.,    52    Wash.,    272, 
100   Pac.   Rep.   727,   729. 

56  California.    Compare  Lucas  v.  Gobbi,  10  Cal.  App.  648,  653,  103  Pac. 
Rep.  157. 

Oregon.     See  Bohn  v.  Wilson,   53  Oreg.   490,   101  Pac.  Rep.   202. 

57  California.     See  Davis  v.  Treacy,  8  Cal.  App.   395,  97  Pac.  Rep.  78. 
Oregon.     See  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.   202. 

58  California.     See   Lucas   v.    Gobbi,    10    Cal.    App.    648,    653,    103    Pac. 
Rep.    157. 

59  Washington.     Cornelius   v.    Washington    S.   L.,    52    Wash.    272,    100 
Pac.  Rep.  727,  729. 

eo  Oregon.     See  Bohn   v.   Wilson,   53   Oreg.   490,   101   Pac.   Rep.   202. 


§§  713-722          MECHANICS'    LIENS— SUPPLEMENT.  244 

§  713.     Same.    Variance  between  claim  as  an  exhibit  and 
allegations  of  complaint. 
Additional  matter  to  foot-note  99.61 

§  714.  Same.  Unnecessary  statements  in  claim  as  an  ex- 
hibit. 

§  715.     Other  interests.    For  what  purpose  alleged. 
Additional  matter  to  foot-note  101. 62 

§  716.    Same.    Alleging  no  other  claim  upon  fund. 
Additional  matter  to  foot-note  106.63 

§  717.  Description  of  property.64 

§  718.  Same.    Land  for  convenient  use  and  occupation.05 

§  719.  Same.    Description  of  whole  or  part  of  building.00 

§  720.  Same.     Description  in  claim  of  lien  referred  to.66 

§  721.    Damages. 

Additional  matter  to  foot-note  119.67 

§  722.     Verification  of  complaint.68 

ei  California.  See  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  537. 

62  Oregon.     Mortgagee    alleging    payment    of    Hen    as    permitted    by 
mortgage   must   state  all    the   material    facts   showing   that   the   same 
were    liens    upon    the    property,    and    not    mere    conclusions    of    law: 
Equitable  S.  &  L.  Assoc.  v.  Hewitt  (Oreg.),  106  Pac.  Rep.  447,  450. 

63  Washington.     See    North    Coast    Ry.    Co.    v.    Hess,    56    Wash.    335, 
105  Pac.  Rep.  853.  / 

64  See  {{  399  et  seq..  this  Supplement,  ante. 

65  See  J5  440  .et  seq.,  this  Supplement,  ante. 

66  See  Si  399  et  seq.,  this  Supplement,  ante. 

67  AM  to  damages i 

California.  See  Bacigalupi  v.  Phoenix  B.  &  C.  Co.  (Cal.  App.), 
112  Pac.  Rep.  892;  Fairchild-Gilmore- Wilton  Co.  v.  Southern  R.  Co., 
158  Cal.  264,  110  Pac.  Rep.  951,  953:  Lacy  Mfg.  Co.  v.  Los  Angeles 
G.  &  E.  Co.,  12  Cal.  App.  37,  41,  106  Pac.  Rep.  413;  Sherman  v.  Gray, 
11  Cal.  App.  348,  104  Pac.  Rep.  1004. 

68  See  {'410,  this  Supplement,  ante. 


245  COMPLAINT.  §§  723-727 

§  723.    Joinder  of  causes  of  action  in  complaint. 
Additional  matter  to  foot-note  122.69 
Additional  matter  to  foot-note  123. 70 

§  724.     Same.    Designating  causes  of  action  separately. 

§  725.     Same.    Reference  from  one  cause  of  action  to  an- 
other. 

Additional  matter  to  foot-note  127." J 

§  726.    Same.    Actions  that  may  be  united  in  one  com- 
plaint. 

Additional  matter  to  foot-note  130.72 

§  727.    Same.    Objections,  how  raised. 

Additional  matter  to  foot-note  132.73 


69  Joinder  of  actions  on  express  contract  and  implied  contract: 
Colorado.     See  Hall  v.  Cudahy,   46  Colo.  324,   104  Pac.  Rep.  415. 
Oregon.     See  Bohn  v.  Wilson,  53  Oreg.  490,  101  Pac.  Rep.  202,  204. 
•Washington.     See  Holm  v.  Chicago  M.  &  P.  S.  Ry.  Co.   (Wash.),   109 

Pac.  Rep.  799.  , 

70  Montana.     See  Neuman  v.  Grant,  36  Mont.  77,  92  Pac.  Rep.  43. 
Oklahoma.     See   Jones  v.    Balsley    (Okl.),   Ill    Pac.   Rep.    942;    s.   c., 

25  Okl.  344,  106  Pac.  Rep.  830. 

71  California.     Compare   Lacy  Mfg.   Co.   v.   Los  Angeles  G.   &  E.   Co., 
12  Cal.  App.  37,  40,  106  Pac.  Rep.  413. 

72  Utah.     Joinder    of    legal    and    equitable    causes    of    action:     See 
Volker-Scowcroft  L.  Co.  v.  Vance  (Utah),  103  Pac.  Rep.  970,  972;  s.  c., 
33  Utah  74,  88  Pac.  Rep.  896. 

73  Colorado.     Hall  v.  Cudahy,  46  Colo.  324,  104  Pac.  Rep.   415. 


§§  728-730          MECHANICS'    LIENS— SUPPLEMENT.  246 


'CHAPTER  XXXVI. 
DEMURRER. 

§  728.     Demurrer.     Generally. 
Additional  matter  to  foot-note  I.1 

§  729.  General  demurrer.  Where  the  complaint  stated 
a  cause  of  action  on  the  implied  promise  or  quantum  meruit. 
a  general  demurrer  was  properly  overruled,  although  it 
referred  to  the  statutory  original  contract,  which  had  not 
been  filed,  and  was  therefore  void.2 

Additional  matter  to  foot-note  3.3 

§  730.  Same.  Filing  claim  of  lien.  Time  of  completion 
of  building.  If  it  appears  from  the  complaint  that  the  claims 
of  lien  were  filed  prematurely,  a  general  demurrer  should  be 
sustained  in  an  action  to  foreclose  the  lien.4 

Additional  matter  to  foot-note  7.5 


1  California.      Harmlea*  error  In  overruling  demurrer  on  the  ground 
of  insufficiency  of  complaint  as  to  damage:     See  Bacigalupi  v.  Phoenix 
B.  &  C.  Co.   (Cal.  App.),  112  Pac.  Rep.  892. 

Action  to  recover  attorney*'  fee*  expended  in  suit  to  foreclose  lien; 
demurrer:  See  Klokke  v.  Raphael,  8  Cal.  App.  1,  4,  96  Pac.  Rep.  392. 

Colorado.     See  Hall  v.  Cudahy,  46  Colo.  324,   104  Pac.  Rep.  514. 

Iriiilio.  Failure  of  foreign  corporation  to  comply  with  Mtatntory 
prerequiMteit;  demurrer  must  be  special,  not  general:  Valley  L.  Co. 
v.  Driessel,  13  Idaho  662,  93  Pac.  Rep.  765,  771. 

2  California.     Lacy    Mfg.    Co.    v.    Los    Angeles    G.    &    E.    Co.,    12    Cal. 
App.  37,  43,  106  Pac.  Rep.  413. 

3  California.     A   demand   In   the   prayer   is   a   sufficient   statement   of 
the  amount  of  damages  sustained  as  against  general  demurrer,  where 
the  facts  stated  sustain  a  judgment  for  damages  in  an  action  against 
the  contractor  and  the  contractor's  sureties  for  damages  for  breaches 
of  contract:     Bacigalupi  v.  Phoenix  B.  &  C.  Co.   (Cal.  App.),   112  Pac. 
Rep.  892. 

New  Mexico.  Joint  demurrer:  See  Gray  v.  New  Mexico  P.  S.  Co. 
(N.  M.),  110  Pac.  Rep.  603,  605. 

Washington.  Falling  to  allege  written  agreement  for  arbitration  t 
See  Owen  v.  Casey,  48  Wash.  673,  94  Pac.  Rep.  473. 

4  California.     Baker   v.   Lake   L.    C.   &    I.   Co.,   7   Cal.   App.    482,    484, 
94  Pac.  Rep.  773. 

3  California.  See  Lucas  v.  Gobbi,  10  Cal.  App.  648,  652.  103  Pac. 
Rep.  157. 


247  DEMURRER.  gg  731-735 

§  731.    Same.    Cessation  from  work.0 

§  732.  Same.  Claim  of  lien  not  setting  forth  plans  and 
specifications. 

Additional  matter  to  foot-note  II.7 

§  733.  Same.  Variance  between  claim  as  exhibit  and 
body  of  complaint.8 

§  734.  Special  demurrer.  Misjoinder  of  parties.  Where 
there  is  not  an  entire  failure  to  allege  non-payment,  the 
averment  is  simply  defective  and  can  be  reached  only  by 
special  demurrer  directed  to  that  point.9 

Additional  matter  to  foot-note  14. 10 

§  735.  Same.  Ambiguity  and  uncertainty.11  Conflict 
between  claim  as  exhibit  and  body  of  complaint.  A  special 
demurrer  addressed  to  the  complaint  generally  is  properly 
overruled.12 

Additional  matter  to  foot-note  16. 13 


6  See  §§354  et  seq.,  this  Supplement,  ante. 

7  New   Mexico.     Where   there    is   nothing   in    the    complaint    to   show 
that   the   contract   had    such    fault   in    the    claim    of   lien,    and   did    not 
express    the    terms,   time   given    and    conditions    of   the    contract,    it    is 
not  subject  to  general  demurrer  on  this  ground:     Gray  v.  New  Mex- 
ico P.  S.-  Co.    (N.  M.),   110  Pac.  Rep.   603,   604. 

8  See  §  735,  and  "Variances,"  §§  835,  et  seq.,  this  Supplement,  post. 

9  California.     Burke  v.  Dittus,  8  Cal.  App.  175,  177,  96  Pac.  Rep.  330. 

10  Oklahoma.     See  Choctaw  O.   &   G.   R.   Co.   v.   Burgess,   21   Okl.    653, 
97  Pac.  Rep.  271;  Davis  v.  Caruthers   (Okl.),   97  Pac.  Rep.   581. 

Oregon.  Misjoinder  of  causes  of  action:  See  Bohn  v.  Wilson,  53 
Oreg.  490,  101  Pac.  Rep.  202,  204. 

Washington.  See  City  of  Spokane  v.  Costello,  57  Wash.  183,  106 
Pac.  Rep.  764,  767;  Fransioli  v.  Thompson,  55  Wash.  259,  104  Pac.  Rep. 
278,  280. 

11  Washington.     Uncertainty:     See    Dickerman    v.    Reeder    (Wash.), 
109  Pac.  Rep.  1060. 

12  California.     Lacy   Mfg.    Co.    v.    Los    Angeles    G.    &    E.    Co.,    12    Cal. 
App.   37,    40,   106   Pac.   Rep.   413. 

13  Colorado.      See  Hall  v.  Cudahy,   46  Colo.   324,   104  Pac.  Rep.   415. 
Montana.     Where  allegations  in   different   counts  in   a  complaint  to 

foreclose  the  lien  are  inherently  contradictory,  and  both  cannot  pos- 
sibly be  true,  complaint  is  demurrable:  Neuman  v.  Grant,  36  Mont.  77, 
92  Pac.  Rep.  43. 


§§  735-737          MECHANICS'    LIENS — SUPPLEMENT.  248 

Additional  matter  to  foot-note  17. 14 

§  736.    Same.     Conflict.    Bond  as  exhibit  and  allegations 
of  complaint.15 

§  737.    Same.    Conclusions  of  law. 
Additional  matter  to  foot-note  20. 10 


14  California.  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  637. 

is  See  "Sureties,"  |§  605  et  seq.,  this  Supplement,  ante. 

16  California.  Amount  "due  and  owing";  •peelal  demurreri  See 
Burke  v.  Dlttus,  8  Cal.  App.  175,  178,  96  Pac.  Rep.  330. 

••  v  nn. nut    due":  sprrinl   iirimi rrrr :     See  Burke  v.  Dittus,  supra. 

Oregon.  "Valid  Menu";  general  demurrers  See  Equitable  S.  &  L. 
Assoc.  v.  Hewitt  (Greg.),  106  Pac.  Rep.  447,  450. 


249  ANSWER,    AND    OTHER    PLEADINGS.          SS  738-743 


CHAPTER  XXXVII. 

ANSWER,  AND  OTHER  PLEADINGS. 

§  738.    Answer.    In  general. 
Additional  matter  to  foot-note  I.1 

§  739.    Same.    General  denial. 
Additional  matter  to  foot-note  3.2 

§  740.  Same.  Denials  of  conclusions  of  law.  Ordinarily 
the  words  "due,"  "owing,"  and  "payable,"  are  conclusions 
of  law,  denial  of  which  raises  no  issue.3 

§  741.    Same.    Negative  pregnant. 
Additional  matter  to  foot-note  8.4 

§  742.     Same.    Denials  on  information  and  belief. 
Additional  matter  to  foot-note  13. 5 

§  743.     Same.    Exception  to  rule. 

1  Idaho.     Failure    of   foreign    corporations   to    comply   with    domestic 

law:  objection  made  by  answer:  Valley  L.  Co.  v.  Driessel,  13  Idaho 
662,  93  Pac.  Rep.  765,  771. 

Kansas.  Statute  of  limitations  growing  immediately  out  of  written 
contract  relating  to  drilling  of  wells:  See  Bailey  v.  Fredonia  G.  Co., 
82  Kan.  746,  109  Pac.  Rep.  411,  413. 

Oregon.  Reply  to  new  matter  in  answer;  departure:  See  Pioneer 
H.  Co.  v.  Farrin  (Oreg.),  107  Pac.  Rep.  456. 

Defense  as  to  agency:  See  Equitable  S.  &  L.  Assoc.  v.  Hewitt 
(Oreg.),  106  Pac.  Rep.  447,  450. 

2  'Washington.      Special    defense    inconsistent    -with    general     denial: 
See  Helmer  v.   Title  I.   &  G.   Co.,  50   Wash.   411,  97   Pac.   Rep.   451,   452. 

3  California.     Irwin  v.  Ins.  Co.  of  N.  A.  (Cal.  App.),  116  Pac.  Rep.  294. 

4  Washington.     Failure  to   deny   authority   of  agent:      See   Driver  v. 
Galland,  58  Wash.  62,  109  Pac.  R6p.  593,  595. 

5  Idaho.     As    to    filing    articles     of    incorporation     and     designating 
agent   of  foreign   corporation:     See  Nelson  Bennett  Co.   v.   Twin  Falls 
L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  800,  92  Pac.  Rep.  980. 

Washington.     Sumpter  v.  Burnham,  51  Wash.   599,  99  Pac.  Rep.   752. 


§§  744-753          MECHANICS'    LIENS — SUPPLEMENT.  250 

§  744.    Same.    Evasive  denials. 
Additional  matter  to  foot-note  17.° 

§  745.    Same.     Deficiencies  of  complaint  cured  by  answer. 

§  746.  Same.  Special  defenses.  Where  a  structure  is 
destroyed  before  completion,  for  instance,  where  a  bridge  is 
carried  away  by  floods,  the  failure  of  the  owner  to  derive 
benefits  from  the  work  performed  by  the  contractors,  if  the 
loss  be  occasioned  through  fault  of  the  owner,  for  example, 
by  failing  to  provide  the  material  as  required  by  the  con- 
tract, is  no  defense  in  an  action  based  upon  a  common 
count  or  quantum  meruit.7 

§  747.  Same.  Neglect  of  contractor  to  supply  materials 
and  proceed  with  work.8 

§  748.  Same.  Abandonment.9 

§  749.  Same.  Payments  made  by  owner.10 

§750.  Same.  Void  contract  as  defense.11 

§  751.  Same.  Void  contract  no  defense  in  personam.12 

§752.  Same.  Mechanic's  lien  as  defense  to  mortgage 
foreclosure. 

§  753.     Same.     Counterclaim.     Payments.13 

G  \\HMiiiiiKton.  Compare  Helmer  v.  Title  I.  &  G.  Co.,  50  Wash.  411, 
97  Pac.  Rep.  451,  452. 

T  California.  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  237,  107  Pac. 
Rep.  150. 

8  See  §|  519,  520  and  523,  et  seq.,  this  Supplement,  ante. 

»  See  preceding:  note. 

10  See  Si  547  et  seq.,  this  Supplement,  ante. 

11  California.     The    Statutory    Original    Contract    was    abolished    by 
amendment  of  May  1,  1911,  to  §  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

See  §§  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

12  See  preceding:  note. 

13  See  §§515  et  seq.,  this  Supplement,  ante. 


251  ANSWER,    AND    OTHER    PLEADINGS.          S  <?  754_J61 

§  754.     Same.     Judgment    and    costs    in    action    against 
agent.14 

§  755.    Same.     Orders  paid.15 

§  756.     Same.    Damages. 
Additional  matter  to  foot-note  44.  16 

§  757.     Same.    Future  repairs. 

§  758.    Same.    Damages  for  delay. 
Additional  matter  to  foot-note  49.  17 

§  759.     Cross-complaint. 

Additional  matter  to  foot-note  50.  18 

§760.     Same.     Setting  up   mechanic's  lien  in  mortgage 
foreclosure. 


§  761.     Same.    Damages. 
Additional  matter  to  foot-note  55.  19 


14  See   "Agency,"   §§  572  et  seq.,  ante. 

is  Colorado.  Payment,  special  defense:  Harvey  v.  Denver  &  R.  G. 
R.  Co.,  44  Colo.  258,  99  Pac.  Rep.  31,  32. 

Release  or  accord  and  satisfaction  must  be  specially  pleaded:  Har- 
vey v.  Denver  &  R.  G.  R.  Co.,  44  Colo.  258,  99  Pac.  Rep.  31,  33. 

Oklahoma.  Defense  by  one  or  two  joint  original  contractors  that 
the  other  original  contractor  agreed  with  him  to  furnish  certain 
material  to  erect  the  building;  held  not  available  in  an  action  by 
subclaimants  to  foreclose  a  lien,  but  that  his  remedy  was  against  the 
other  contractor:  Albert!  v.  Mo«re,  20  Okl.  78,  93  Pac.  Rep.  543,  548. 

16  Kansas.  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac.  Rep. 
1003,  1005;  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac. 
Rep.  833,  14  L.  R.  A.  (N.  S.),  918. 

As  to  damages:  See  Badger  L.  Co.  v.  Martin  (Kan.),  112  Pac.  Rep. 
104,  105. 

Washington,  But  damages  cannot  be  set  up  for  defective  material 
put  into  the  building  against  a  subclaimant:  Rieflin  v.  Grafton 
(Wash.),  115  Pac.  Rep.  851,  853. 

Setting  up  damages  for  delay:  See  Dickerman  v.  Reeder  (Wash.), 
109  Pac.  Rep.  1060. 

IT  Idaho.  Damages  for  delay:  See  Steltz  v.  Armory  Co.,  15  Idaho 
551,  99  Pac.  Rep.  98,  101. 

is  Colorado.  Issuing  summons  on  cross-complaint  of  claimant  not 
required:  Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo. 
461,  94  Pac.  Rep.  570,  573. 

19  Kansas.      So,  also  as  against  subcontractor:      Wichita  S.   &  D.  Co. 


§§  762,  763          MECHANICS'    LIENS   SUPPLEMENT.  252 

§  762.    Same.    Payments.20 

$  763.     Supplemental  answer.    Decree   of  foreclosure  of 
mortgage.21 

v.  Well.  80  Kan.  606,  103  Pac.  Rep.  1003,  1005;  Fossett  v.  Rock  Island 
L.  &  Mfg.  Co..  76  Kan.  428.  92  Pac.  Rep.  833.  14  L.  R.  A.   (N.  S.),  918. 

20  See  1755,  note  15,  this  Supplement. 

21  See  "Decree,"  generally.  H  903  et  seq..  this  Supplement,  post. 


253  EVIDENCE.  §§  764-766 


CHAPTER  XXXVIII. 

EVIDENCE. 

§  764.     Scope  of  chapter. 
Additional  matter  to  foot-note  3.1 

§  765.  General  rule  as  to  exclusion  of  evidence.2  Where 
the  owner  does  not  comply  with  the  statutory  requirements 
as  to  filing  the  original  contract  and  notice  of  completion  he 
is  not  in  position  to  claim  strict  exclusion  of  all  testimony 
tending  to  show  his  own  acts  and  conduct  in  relation  to  the 
fact  as  to  when  the  building  was  completed.3 

Additional  matter  to  foot-note  4.4 

Additional  matter  to  foot-note  5.5 

Additional  matter  to  foot-note  6.6 

§  766.     Admissions.7 


1  Idaho.     The   rule  as  to  admission   of  evidence   in   suit   to  foreclose 
lien,  when  no  question  of  fact  is  submitted  to  the  jury  is  much  more 
liberal:     Nelson   Bennett  Co.  v.   Twin   Falls  L.   &  W.   Co.,    14   Idaho   5, 
93   Pac.   Rep.    789,   799,   92   Pac.   Rep.   980. 

Letters   as   evidence: 

Colorado.  Idaho  G.  C.  M.  &  M.  Co.  v.  Colorado  I.  W.  Co.  (Colo.), 
Ill  Pac.  Rep.  553  (self-serving). 

Montana.     Piper  v.   Murray    (Mont.),   115   Pac.   Rep.    669,   673. 

Payment : 

Kansas.  Evidence  of  payment  against  subclaimants:  Fossett  v. 
Rock  Island  L.  &  Mfg.  Co.,  76  Kan.  428,  92  Pac.  Rep.  833,  836. 

Oregon.  Indefinite  evidence  as  to  payment:  See  Laughlln  v.  Con- 
nors, 54  Oreg.  184,  102  Pac.  Rep.  793. 

2  Washington.     Evidence    must    be    introduced    in    support    of    the 
allegations   of  the  complaint  denied   in   the  answer:     Helmer  v.   Title 
I.  &  G.  Co.,  50  Wash.  411,  97  Pac.  Rep.  451,  452. 

3  California.     Hubbard    v.    Lee,    6    Cal.    App.    602,    92    Pac.    Rep.    744; 
s.   c.,   10  Cal.  App.   477,  102  Pac.  Rep.   528. 

4  Kansas.     McCullough  v.   S.  J.  Hayde  C.   Co.,   82   Kan.    734,   109   Pac. 
Rep.    176. 

s  Kansas.  See  McCullough  v.  S.  J.  Hayde  C.  Co.,  82  Kan  734,  109  Pac. 
Rep.  176. 

o  Washington.  Cornelius  v.  Washington  S.  L.,  52  Wash.  272,  100 
Pac.  Rep.  727,  729. 

7  Idaho.  Statements  or  admissions  by  the  principal  in  the  course 
of  the  performance  of  a  building  contract  are  binding  on  his  surety 


§§  766-769          MECHANICS'    LIENS — SUPPLEMENT.  254 

Additional  matter  to  foot-note  9.8 
Additional  matter  to  foot-note  10.9 

§  767.    Attorney's  fees. 

Additional  matter  to  foot-note  II.10 

§  768.    Description  of  property. 
Additional  matter  to  foot-note  12.n 
Additional  matter  to  foot-note  13. 12 

§  769.     Extent  of  land  for  convenient  use  and  occupation. 
Additional  matter  to  foot-note  14.13 


attempting  to  foreclose  lien,  as  they  are  part  of  the  res  grestae. 
So,  where  he  admits  that  he  has  no  charge  for  extras:  Sanders  v. 
Keller  (Idaho),  111  Pac.  Rep.  350,  352. 

KMIINIIM.  Admissions  by  owner  to  subcontractor  during  period  al- 
lowed to  file  claim  admissible:  Fossett  v.  Rock  Island  L.  &  Mfg.  Co.. 
76  Kan.  428,  92  Pac.  Rep.  833. 

Montana.  Admission  that  claimant  would  testify  to  truth  of  items 
set  out  in  the  lien  statement  leaves  question  as  to  what  credits  shall 
be  allowed  to  the  owner  to  be  proved:  Mills  v.  Olsen  (Mont.),  115 
Pac.  Rep.  33,  34. 

Washington.  After  abandonment  of  performance  of  contract  to  his 
surety,  latter  Is  not  bound  by  subsequent  admissions  of  contractor: 
Exposition  A.  Co.  v.  Empire  State  S.  Co.,  49  Wash.  637,  96  Pac.  Rep. 
158,  160,  97  Pac.  Rep.  464. 

A  California.  Hubbard  v.  Lee,  6  Cal.  App.  602,  92  Pac.  Rep.  744:  s.  c., 
10  Cal.  App.  477,  102  Pac.  Rep.  528. 

o  Utah.  AdmiHMlon  by  contractor  that  materials  furnished  by  his 
subcontractor  in  compliance  with  subcontract  supports  finding: 
Mudgley  v.  Campbell  B.  Co.  (Utah),  112  Pac.  Rep.  820. 

Washington.  See  Cornelius  v.  Washington  S.  L.,  52  Wash.  272, 
100  Pac.  Rep.  727,  729. 

10  Washington.     Stipulation    for    fixing    attorneys'    fees    without    in- 
troduction   of   evidence:     See    Housekeeper    v.    Livingstone,    48    Wash. 
209,   93   Pac.   Rep.    217,   218. 

11  California.     Patten  &  Davies  L.  Co.  v.  Gibson,  9  Cal.  App.   23,  25, 
98   Pac.   Rep.   37,   38. 

12  Kansas.      Admlsslblllty   of   original   or    certified    record    of   survey, 
provided  for  by  statute:     See  Dent  v.  Simpson,  81   Kan.   217,  105  Pac. 
Rep.   542. 

Montana.  Evidence  of  survey,  and  boundary  lines:  See  Hamilton 
v.  Modidah  Trust,  39  Mont.  269,  102  Pac.  Rep.  335.  See  s.  c.,  Hamil- 
ton v.  Murray,  29  Mont.  80,  74  Pac.  Rep.  75. 

13  I'tah.     Extent    of   land    for   conveniences   and    occupation    a    ques- 
tion  of   fact:     Park   City   M.    Co.    v.    Comstock   S.    M.    Co.    (Utah),    103 
Pac.   Rep.   254,  259. 

See    §  827,    this   Supplement,    post. 


255  EVIDENCE.  §§  770-773 

§  770.  Books  of  account.  Claimants  cannot  change  origi- 
nal entries  in  their  books  of  account  to  the  detriment  of  third 
persons.14  Ledger  made  up  from  previous  entries  is  not  a 
book  of  original  entries.15  And  where  the  witness  has  not 
made  the  entries,  they  cannot  be  read  in  evidence.16 

Additional  matter  to  foot-note  15. 17 

§  771.    Claimant  as  witness  against  estate. 

§  772.    Fixtures.    Intention  of  parties. 

Additional  matter  to  foot-note  17.18 

§  773.  Judicial  notice.  Courts  will  take  judicial  notice  of 
city  charters  which  are  state  laws;19  and  of  the  streets  and 
their  boundaries  and  their  relations  to  each  other  in  cities  ;20 
and  of  the  line  of  a  railroad  operated  partly  in  the  state  and 

14  California.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  495,  99- 
Pac.  Rep.  856,  863,  111  Pac.  Rep.  760;  s.  c.,  sub  nom.  Burnett  v.  Glas, 
154  Cal.  249,  97  Pac.  Rep.  423. 

Utah.     Belknap  v.  Condon,  34  Utah  213,  97  Pac.  Rep.  Ill,  115. 

is  California.  San  Francisco  T.  Co.  v.  Gray,  11  Cal.  App.  314,  104 
Pac.  Rep.  999. 

16  Idaho.  Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac. 
Rep.  24. 

Oregon.     Laughlin  v.  Connors,  54  Oreg.   184,   102  Pac.  Rep.   793. 

Idaho.  Entries  in  books  as  evidence  of  delivery  of  material:  See 
Valley  L.  &  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac.  Rep.  24,  26. 

IT  Colorado.  Books  as  evidence  for  the  purpose  of  identifying  ma- 
terials as  furnished  for  a  particular  job  and  to  a  particular  person: 
See  Rice  v.  Rhone  (Colo.),  Ill  Pac.  Rep.  585. 

Oregon.  Absence  of  books  of  account,  even  though  claimant  igno- 
rant, when  materials  supplied  to  different  properties;  effect:  Laugh - 
lin  v.  Connors,  54  Oreg.  184,  102  Pac.  Rep.  793. 

Washington.  Books  of  original  entries  kept  by  contractors  in 
ordinary  course  of  business  are  competent  to  show  that  the  materials 
were  ordered  and  received,  although  general  manager  as  witness  has 
no  personal  knowledge  of  transaction:  Cascade  L.  Co.  v.  Aetna  I. 
Co.,  56  Wash.  503,  106  Pac.  Rep.  158;  Minneapolis  S.  &  M.  Co.  v. 
Aetna  I.  Co.,  56  Wash.  699,  106  Pac.  Rep.  160. 

is  Washington.  See  American  R.  Co.  v.  Pendleton  (Wash.),  112 
Pac.  Rep.  1117. 

See   §§  95  and   185,   et  seq.,   Treatise  and  this  Supplement,   ante. 

19  California.      Stoner   v.    City   Council    of   Los   Angeles,    8    Cal.    App. 
607,   97   Pac.   Rep.   692,   694. 

Oregon.     Naylor  v.  McColloch,  54  Oreg.   459,  103  Pac.   Rep.   68. 

20  California.      Pacific    Paving    Co.    v.    Verso,    12    Cal.    App.    362,    107 
Pac.  Rep.   590. 


§§  773-778          MECHANICS'    LIENS — SUPPLEMENT.  256 

partly  out  of  it;-1  courts  will  also  take  judicial  notice  of 
the  succession  of  holidays  declared  by  the  governor  of  the 
state  following  the  earthquake  and  conflagration  of  April 
18,  1906.22 

But  Courts  will  not  generally  take  judicial  notice  of 
municipal  ordinances,2-'*  nor  of  building  ordinances;24  nor 
of  the  manner  of  construction  of  buildings  in  a  particular 
county,  nor  the  purposes  for  which  they  are  used;25  nor  of 
the  records  of  other  cases  pending  or  tried  before  it.20 

Additional  matter  to  foot-note  22.27 

§  774.     Parol  evidence.     Assignment. 
Additional  matter  to  foot-note  23.28 

§  775.  Same.  Parol  evidence  to  explain  meaning  of 
words. 

§  776.     Notice.     Probate  proceedings. 
Additional  matter  to  foot-note  26. 29 

§  777.     Questions  assuming  matter  in  dispute.™ 

§778.    Receipt.31 

Additional  matter  to  foot-note  28.32 

21  KanxnM.     Peterson  v.   Missouri  Pac.  Ry.  Co.,  77   Kan.   226,   94   Pac. 
Rep.   138,   140. 

22  California.  Poheim  v.  Meyers,  9  Cal.  App.  31,  98  Pac.  Rep.  66,  67. 

23  California.  Metteer  v.  Smith,  156  Cal.   572,   105  Pac.  Rep.   735,736. 

24  California.  May  v.  Craig,  13  Cal.  App.  368,  109  Pac.  Rep.  842. 

25  California.  Hohn   v.    Pauly,    11   Cal.   App.    724,    106   Pac.    Rep.    266, 
269. 

••\\iiHiiiiiKion.  Pacific  I.  &  S.  Works  v.  Goerig,  55  Wash.  149,  104 
Pac.  Rep.  151;  Lownsdale  v.  Gray's  Harbor  B.  Co.  (Wash.),  103  Pac. 
Rep.  833. 

27  See    $  374,   Treatise. 

28  Oregon.     See  Alderson  v.  Lee,  52  Oreg.   92,  96   Pac.   Rep.   234,   237. 
\\  . -i  Nh  in  UK.  M      Constructive  notice;  general  principles:  See  Hawkes 

v.  Hoffman,  56  Wash.  120,  105  Pac.  Rep.  156,  158. 
so  See  f  828,  this  Supplement,  post. 

31  Ne*r  Mexico.     Receipt*  received  for  expenditure*  are  not  the  best 
evidence  that  the  articles  for  which  they  were  supposed  to  represent 
payment   were   used    in   the  construction   of   that   particular   building1; 
but  they  are  competent  in  connection  with  testimony  as  to  their  con- 
tents, and  not  as  a  substitute   for  the  testimony  of  the   witness. 

New  Mexico.     Neher  v.  Vivian!   (N.  M.),  110  Pac.  Rep.  695.  698. 

32  California.     San   Pedro  L.  Co.  v.   Schroeter,    156  Cal.   158,   161,   103 
Pac.    Rep.    888. 


257  EVIDENCE.  §§  779-784 

§  779.  Agency.  The  testimony  of  an  agent  sworn  as  a 
witness  in  a  case  when  the  question  of  his  agency  is  involved 
is  competent  to  establish  it  and  its  extent  and  maker,  as  any 
other  witness;  but  the  extrajudicial  statements  or  declara- 
tions in  pais  of  one  assuming  to  act  as  agent  are  inadmissible 
and  incompetent  to  establish  the  fact  of  agency.33 

Additional  matter  to  foot-note  30.34 

Additional  matter  to  foot-note  31.35 

§  780.     Same.     Special  statutory  provision.    Presumption. 
Additional  matter  to  foot-note  32. 36 

§  781.     Same.     Overcoming  presumption.     Knowledge. 
Additional  matter  to  foot-note  36. 3~ 

§  782.     Same.     Knowledge  of  lack  of  agency.38 

§  783.  Same.  Knowledge  that  employer  incurred  indebt- 
edness on  his  own  account.39 

§  784.     Same.     Proof  of  knowledge  of  owner. 
Additional  matter  to  foot-note  40.40 

Colorado.  Harvey  v.  Denver  &  R.  G.  R.  Co.t  44  Colo.  258,  99  Pac. 
Rep.  31,  35. 

Washington.  Effective  receipt:  Pacific  L.  &  T.  Co.  v.  Dailey 
(Wash.),  Ill  Pac.'  Rep.  869,  870.. 

33  California.      Kast  v.   Miller   &   Lux    (Cal.   Sup.),   115   Pac.   Rep.   932, 
and   cases   cited. 

34  Person  erecting;  as  agent   for  undisclosed  principal: 
California.      See    Barrett-Hicks   Co.    v.    Glas,    99    Pac.    Rep.    857,    861; 

s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub 
nom.  Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Oregon.     Peck  v.  Voget    (Oreg.),   108   Pac.   Rep.   120. 

Kansas.  Evidence  of  -wife  as  agent  of  husband:  See  Hayes  v. 
Punk,  79  Kan.  416,  99  Pac.  Rep.  1131. 

35  California.     Kast  v.  Miller  &  Lux    (Cal.   Sup.),   115   Pac.   Rep.   932. 
Oregon.      Acts   and   declarations    of   president   of   corporation   acting 

outside  of  duties  and  authorities  not  competent  evidence  against  it: 
See  Harding  v.  Oregon-Idaho  Co.  (Oreg.),  110  Pac.  Rep.  412,  415. 

36  Idaho.     See  Valley  L.   &  Mfg.   Co.   v.   Nickerson,   13   Idaho   682,   93 
Pac.   Rep.   24,    27. 

37  Idaho.      Husband    improving    separate    property    of    wife    without 
her  consent:     See  Larson  v.  Carter,  14  Idaho  511,  94  Pac.  Rep.  825,  827. 

38  See   "Agency,"   §§  572   et  seq.,   this   Supplement,  ante. 

39  See  §§  572  et  seq.,  and  §§  469  et  seq.,  ante. 

40  Utah.     Parol  agreement,  outside   of  contract  of  sale,  authorizing 

Bloom's  Sup. — 17 


§§  785-787          MECHANICS'    LIENS — SUPPLEMENT.  £58 

§  785.  Burden  of  proof.  The  plaintiff  need  not  prove 
non-payment,  but  the  burden  of  proving  payment  rests  on 
the  defendant.41  The  burden  of  proof  of  the  right  to  make 
application  of  payments  is  on  the  claimant  and  not  on  the 
owner.42  The  burden  of  showing  that  damages  under  a 
contract  are  liquidated  damages  is  upon  the  party  endeavor- 
ing to  avail  himself  of  the  provision.43  The  burden  of  prov- 
ing the  waiver  of  the  lien  is  upon  the  party  asserting  it.44 

Additional  matter  to  foot-note  42.4r> 

§  786.     Same.     Priorities.40 

§  787.  Same.  Time  of  filing  claim  of  lien.47  The  burden 
is  on  the  claimant  to  prove  that  he  filed  his  claim  of  lien  or 
statement  within  the  prescribed  statutory  period.48  • 

Additional  matter  to  foot-note  47.49 


Improvement:      See    Belknap    v.    Condon,    34    Utah    213,    97    Pac.    Rep. 
111.   114. 

41  California.     Barrett-Hicks  Co.   v.   Glas    (Cal.   App.),   Ill    Pac.   Rep. 
760.  765;  a.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  a.  c.,  sub  nom.  Bur- 
nett v.  Glas,   154  Cal.   249.   97  Pac.  Rep.   423. 

42  Montana.     Piper  v.  Murray   (Mont.),  115  Pac.  Rep.  S69,  672   (appli- 
cation to  items  of  extra  work). 

43  California.     Sherman  v.  Gray,  11  Cal.  App.  348,  104  Pac.  Rep.  1004. 
'<  \Yn«iiiiiK<"n.      Pacific    L.    &    T.    Co.    v.    Dailey    (Wash.),    Ill    Pac. 

Rep.    869,    870. 

45  California.      The    burden    of   proof    of    co-partner    surety    on    con- 
tractor's bond  acted  with  authority  of  co-partner  is  on  owner:   Bur- 
nett v.  Glas,  154  Cal.  249,  256,  97  Pac.  Rep.  423;  s.  c.,  sub  nom.  Barrett- 
Hicks  Co.  v.  Glas.  9  Cal.  App.   491,  99   Pac.   Rep.   856. 

46  See  Priorities,  {{  486  et  seq.,  this  Supplement,  ante. 

47  Strike  out,  in  the  fourth  line  of  the  section,  the  words  "comple- 
tion of  the  building"  and  insert  "the   filing  of  his  claim  of  lien  was." 

48  Colorado.     Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 
\\niiiiiiKtim.     Pacific  L.  &  T.  Co.  v.  Dailey    (Wash.),   Ill   Pac.  Rep. 

869.    870. 

40  Idaho.  See  Valley  L.  Co.  v.  Driessel,  13  Idaho  662,  93  Pac.  Rep. 
765,  771. 

Oregon.  The  burden  of  proof  is  on  the  principal  contractor — to 
prove  substantial  compliance  with  the  contract  or  with  the  contract  as 
modified  by  the  parties  from  time  to  time,  or  that  the  owner  waived 
compliance:  Adams  v.  Mackenzie  (Oreg.),  114  Pac.  Rep.  460. 

Burden  on  claimant  to  show  no  unnecessary  or  unreasonable  delay 
in  performance  to  postpone  period  for  filing  claim:  See  Coffey  v. 
Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079;  s.  c.,  52  Oreg.  545,  97  Pac.  Rep. 
1081;  s.  c..  52  Oreg.  546,  97  Pac.  Rep.  1082. 


259  EVIDENCE.  §§  788-794 

§  788.     Same.     Cessation  from  work. 
Additional  matter  to  foot-note  48. 50 

§  789.     Certificate  as  evidence. 
Additional  matter  to  foot-note  49. 51 
Additional  matter  to  foot-note  50.52 

§  790.     Same.     Conclusiveness  of  certificate. 
Additional  matter  to  foot-note  52.53 

§  791.  Same.  Certificate  as  evidence  of  time  of  comple- 
tion of  building.54 

§  792.     Completion  of  building.53 
§  793.     Same.     Statutory  evidence.56 
§  794.    Non-completion  of  building. 

50  California.     Testimony  regarding  amount  and  value  of  work  done 
up  to  time  of  abandonment;   evidence  in   rebuttal:    See  C.   Scheerer  & 
Co.  v.   Deming,   154  Cal.   138,  144,   97  Pac.  Rep.   155. 

Burden  on  owner  to  show  affirmatively  tbat  holidays  extended  his 
time  to  post  notice  of  non-responsibility  and  that  such  notice  was 
given  within  the  statutory  time:  John  R.  Gentle  &  Co.  v.  Britton, 
158  Cal.  328,  330,  111  Pac.  Rep.  9. 

Idaho.  Burden  on  owner  to  show  material-men  had  knowledge  of 
existence  of  more  than  one  original  contract:  See  Valley  L.  Co.  v. 
Driessel,  13  Idaho  662,  93  Pac.  Rep.  765,  771. 

51  Washington.      Certificate    to    prove    damage    to    owner    as    against 
surety   on   contractor's   bond:      See   Lazelle   v.   Empire   State   S.   Co.,   58 
Wash.   589,   109   Pac.  Rep.   195,   197. 

52  See  City  S.  I.  Co.  v.  Marysville,  155  Cal.  419,  428,  101  Pac.  Rep.  SOS. 

53  California.      As    to    performance    of    work:      See    City    S.    I.    Co.    v. 
Marysville,  155  Cal.  419,   428,  431,  432,   101  Pac.  Rep.  308. 

Oregon.  But  a  certificate  as  to  estimates  of  amount  of  work  done 
is  not  conclusive  in  the  absence  of  a  provision  in  the  contract  making 
it  conclusive:  Williams  v.  Mount  Hood  Ry.  &  T.  Co.  (Oreg.),  110  Pac. 
Rep.  490,  492,  111  Pac.  Rep.  17. 

"Washington.  Conclusive  as  to  cost  of  completion  upon  abandon- 
ment: Lazelle  v.  Empire  State  S.  Co.,  58  Wash.  589,  109  Pac.  Rep. 
195,  197. 

As  to  estimates:  See  McKibor  v.  Savage  (Wash.),  110  Pac.  Rep. 
811,  812. 

54  See    "Certificates,"    §§  239    et   seq.,   and    §§  789   et   seq.,    this   Supple- 
ment, ante.  . 

55  See  "Performance,"  §§  334  et  seq.,  this  Supplement,  ante. 
so  See  §§416  et  seq.,  §§350  et  seq.,  this  Supplement,  ante. 


§§  795,  796         MECHANICS'    LIENS — SUPPLEMENT.  260 

§  795.  Claim  of  lien.  As  evidence  of  lien.  The  introduc- 
tion of  the  claim  of  lien  in  evidence  is  not  to  prove  its  con- 
tents, but  to  establish  that  notice  has  been  given  as  required 
by  law.  It  is  entitled  to  admission  when  it  is  shown  that  it 
complies  with  the  statutory  requirements.  If  the  signature 
and  verification  are  sufficient  to  entitle  it  to  be  filed  with  the 
recorder  and  it  was  so  filed,  it  becomes  a  public  record,  and 
thereafter  may  be  received  in  evidence  under  the  rules  gov- 
erning the  admission  of  public  recorded  writings.  No  proof 
of  the  genuineness  of  the  signatures  to  either  the  claim  or 
the  verification  is  a  necessary  preliminary  to  the  admission  in 
evidence  of  a  claim  of  lien  properly  verified  and  filed  for 
record.57 

Additional  matter  to  foot-note  65.58 

Additional  matter  to  foot-note  66. 59 

§  796.  Same.  Objections  to  contents  of  claim.  If  the 
issue  is  raised  that  the  description  of  the  property  in  the 
claim  of  lien  is  not  sufficient  for  identification,  the  claimant 
may  introduce  evidence  in  support  of  the  sufficiency  of  the 
description.60  When  objection  is  made  that  sufficient  foun- 
dation has  not  been  laid  for  the  introduction  of  the  recorded 
claim  of  lien,  the  particulars  wherein  the  foundation  is  not 
sufficient  should  be  specified.61  The  terms  of  his  subcon- 
tract, if  controverted,  must  be  proved  by  the  subclaimant 
substantially  as  set  out  in  his  claim  of  lien.62 

ST  California.  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621, 
110  Pac.  Rep.  474,  476. 

58  Nevada.  Omlnnlonii  of  es«entlal»  In  claim  can  not  be  aided  by 
averment  In  complaint  or  extrinsic  evidence.  Porteous  D.  Co.  v.  Fee, 
29  Nev.  375,  91  Pac.  Rep.  135,  136. 

se  Alaska.  Pioneer  M.  Co.  v.  Delamotte  (C.  C.  A.),  185  Fed.  Rep. 
752.  755. 

Claim  not  competent  to  prove  that  work  In  done  or  that  it  is  done 
under  terms  and  conditions  alleged  therein  or  alleged  in  the  com- 
plaint: Pioneer  M.  Co.  v.  Delamotte,  supra. 

California.  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621,  110 
Pac.  Rep.  474,  476. 

eo  California.  Patten  &  Davies  L.  Co.  v.  Gibson,  9  Cal.  App.  23,  25, 
98  Pac.  Rep.  37,  38. 

ei  California.  D.  I.  Nofzlger  L.  Co.  v.  Solomon,  13  Cal.  App.  621, 
110  Pac.  Rep.  474,  476. 

62  California.  Lucas  v.  Rea,  10  Cal.  App.  641,  645,  102  Pac.  Rep.  822, 
101  Pac.  Rep.  537. 


261  EVIDENCE.  §§  796-799 

Additional  matter  to  foot-note  68.63 
Additional  matter  to  foot-note  71. 64 
Additional  matter  to  foot-note  72.65 

§  797.     Extra  work. 

Additional  matter  to  foot-note  73.66 

§  798.    Valid  contract. 

Additional  matter  to  foot-note  76.G" 

§  799.  Same.  Parol  modifications  of  written  contract.  A 
custom  to  do  work  in  a  particular  way,  if  relevant  under  any 
circumstances,  cannot  prevail  as  against  a  contrary  provision 
of  the  contract.68  If  there  is  no  objection  to  evidence  ad- 
mitted showing  the  modification  of  the  original  contract  by 
parol  and  the  trial  court's  attention  is  not  properly  called 
thereto,  the  objection  is  waived.69 

Additional  matter  to  foot-note  77.70 


63  Kansas.  Dealing  with  lien  statement  as  if  In  evidence,  omission 
to  formally  introduce  It  is  not  prejudicial.  Home  L.  &  S.  Co.  v.  School 
Dist.  (Kan.),  115  Pac.  Rep.  590. 

Washington.  Objections  to  the  sufficiency  of  lien  notice  must  be 
raised  at  the  time  when  it  is  offered  in  evidence:  Cornelius  v.  Wash- 
ington S.  L.,  52  Wash.  272,  100  Pac.  Rep.  727,  729. 

6-t  Washington.  Compare  Wetzler  v.  Nichols,  53  Wash.  285,  101  Pac. 
Rep.  867,  868. 

65  Idaho.  Certain  evidence  as  to  extra  work  examined:  See  Rath- 
bun  v.  State,  15  Idaho  273,  97  Pac.  Rep.  335,  337. 

Montana.  Presumption  that  there  were  no  extras,  in  absence  of 
writing  required  by  contract:  Piper  v.  Murray  (Mont.),  115  Pac.  Rep. 
669,  671. 

Evidence  inadmissible  to  prove  extra  work  or  agreement  for  extra 
work  in  absence  of  writing  required  by  contract  or  issue  proved  that 
contract  was  modified  or  this  provision  waived:  See  Piper  v.  Murray, 
supra. 

60  Idaho.     Compare  Sanders  v.  Keller  (Idaho),  111  Pac.  Rep.  350,  352. 

See  §  766,  this  Supplement,  ante. 

67  California.      See    Bacigalupi .  v.    Phoenix   B.    &   C.    Co.    (Cal.    App.), 
112   Pac.   Rep.   892. 

68  California.     C.  Scheerer  &  Co.  v.  Deming,  154  Cal.  138,  143,  97  Pac. 
Rep.  155.     See  Puritas  L.  Co.  v.  Greene   (Cal.  App.),  115  Pac.  Rep.   660. 

69  California.      Lacy   Mfg.    Co.   v.   Los   Angeles    G.    &   E.    Co.,    12   Cal. 
App.   37,   42,  106  Pac.  Rep.   413. 

70  Oregon.     Where  subsequent  modification  of  contract  is  not  pleaded 
evidence   can   not  be   offered  to  prove   it;   likewise  with   reference   to 
waiver  of  performance. 


§§  800-805          MECHANICS'    LIENS — SUPPLEMENT.  262 

§  800.  Same.  Contract  admissible  to  show  character  of 
building.71 

§  801.  Same.  Contract  as  evidence  with  reference  to 
time  of  performance  of  labor. 

§  802.     Inadmissibility  of  indefinite  contract.7- 

§  803.  Parol  evidence  in  aid  of  false  reference.  No  oral 
evidence  can  be  received  to  show  that  plans  and  specifica- 
tions were  intended  by  the  parties  to  form  a  part  of  their 
statutory  original  contract.73 

Additional  matter  to  foot-note  82.74 

§  804.  Parol  evidence  not  admissible  for  construction  of 
contract. 7r> 

Additional  matter  to  foot-note  84.76 

§  805.     Same.     Rule  not  applicable  to  mere  memorandum. 
Additional  matter  to  foot-note  85.77 


TI  See  58792  et  seq.,  and  §§315  et  seq.,  this  Supplement,  ante. 

72  See  i  208,  this  Supplement,  ante. 

73  California.      Hartwell    v.    Ganahl    L.   Co.,    8    Cal.    App.    733,    736,   97 
Pac.  Rep.  901. 

74  Watihlngton.     See   Dickerman   v.   Reeder    (Wash.),    109    Pac.   Rep. 
1060. 

75  A*  to  linen  of  grading:     See  Hill  v.  Clark,  7  Cal.  App.  609,  612,  95 
Pac.   Rep.   382. 

70  Kantian.  Evidence  of  content*  admitted  on  cross-examination 
after  being  ruled  out  on  direct  examination,  re-examination  not  pre- 
judicial. See  St.  Louis  and  S.  F.  R.  Co.  v.  Gaba,  78  Kan.  432,  97 
Pac.  Rep.  435. 

Montana.     See  Piper  v.  Murray   (Mont.),  115  Pac.  Rep.  669,  672. 

General  rule  a*  to  Inadmlmilblllty  of  parol  evidence! 

Oklahoma.  Standard  L.  Co.  v.  Miller  &  Vidor  L.  Co.,  21  Okl.  617, 
96  Pac.  Rep.  761,  764. 

Oregon.     Holland  v.   Rhoades   (Oregf.),   106  Pac.   Rep.   779. 

South  Dakota.     Strunk  v.  Smith,  8  So.   Dak.  407,  66  N.  W.  Rep.  926. 

I'tah.     Midgley  v.  Campbell  B.  Co.   (Utah),  112  Pac.  Rep.  820. 

Washington.  Driver  v.  Galland  (Wash.),  109  Pac.  Rep.  593,  594; 
Tobin  v.  McArthur,  56  Wash.  523,  106  Pac.  Rep.  180. 

General  rule  applied  to  leaae  with  reference  to  duty  to  make  re- 
pairs: Hockersmith  v.  Ferguson  (Wash.),  116  Pac.  Rep.  11. 

77  Oregon.  Compare  Williams  v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.), 
110  Pac.  Rep.  490,  111  Pac.  Rep.  17. 

Washington.  But  see  Goss  v.  Northern  Pac.  H.  Assoc.  of  Tacoma, 
50  Wash.  236.  96  Pac.  Rep.  1078. 


263  EVIDENCE.  |§  806-811 

§  806.     Same.     Performance  of  contract. 

Additional  matter  to  foot-note  86. 78 

§  807.  Void  original  contract  admissible  for  what  pur- 
pose.79 

§  808.     Same.     Invalidity,  how  shown. 
Additional  matter  to  foot-note  88. 80 

§  809.  Malperformance  of  work.  The  question  of  whether 
taking  bricks  out  of  the  foot  of  a  wall  would  weaken  the 
same  is  not  the  subject  of  expert  evidence,  and  is  properly 
excluded  as  calling  for  opinion  evidence  not  expert,  and  for 
matters  of  common  observation.81 

Additional  matter  to  foot-note  90.82 

§  810.     Liquidated  damages. 
Additional  matter  to  foot-note  91. 83 

§  811.  Damages.  Circumstances  surrounding  execution 
of  contract.  Defendant  in  default. 

Additional  matter  to  foot-note  92.84 


78  Expert  evidence:     See  §  809  of  Treatise. 

79  See  §§  319  et  seq.,  Supplement,  ante. 

so  California.  Lucas  v.  Rea,  10  Cal.  App.  641,  102  Pac.  Rep.  822,  101 
Pac.  Rep.  537. 

81  California.      Hedstrom    v.    Union    Trust   Co.,    7    Cal.    App.    278,    287, 
94  Pac.  Rep.  386. 

82  California.     Expert  evidence  as  to  amount  of  work  done:     See  C. 
Scheerer  &  Co.  v.  Deming,   154  Cal.  137,  143,  97  Pac.  Rep.  155. 

See   §  806  of  Treatise. 

Montana.  Expert  can  not  substitute  his  judgment  in  place  of  that 
of  the  architect  or  jury  as  to  whether  a  claimant  was  entitled  to  a 
certificate  for  final  payment:  Piper  v.  Murray  (Mont.),  115  Pac.  Rep. 
669,  673.  See  this  case  generally  as  to  expert  evidence. 

Oklahoma.  As  to  expert  evidence:  See  Yates  v.  Garrett,  19  Okl. 
449,  92  Pac.  Rep.  142. 

Oregon.  Contractors  and  builders  as  experts  on  falling  building 
from  lack  of  lateral  suppo'rt,  and  what  is  necessary  to  be  done  and 
is  usual  under  such  circumstances:  See  Weiss  v.  Kohlhagen  (Oreg.), 
113  Pac.  Rep.  46,  50. 

83  California.     Evidence  as  to  liquidated  damages:    See  Hill  v.  Clark, 
7   Cal.  App.   609,  612,   95  Pac.  Rep.  382;  Sherman  v.  Gray,   11  Cal.   App. 
348,  104  Pac.  Rep.  1004. 

84  California.      Damages   by  explosion:      See   Higgins   v.   Los   Angeles 


§§812-811)          MECHANICS'    LIENS— SUPPLEMENT.  264 

§  812.     Presumption   of   knowledge   by    subclaimants    of 
valid  contract.8-" 


$  813.    Evidence  of  benefit  conferred. 
Additional  matter  to  foot-note  95.86 

§  814.  Acceptance  of  performance.  Where  the  com- 
plaint states  a  good  cause  of  action  in  indebitatus  assumpsit, 
or  on  a  common  count,  it  is  immaterial  whether  the  work 
which  the  contractor  did  for  the  owner  was  not  performed  in 
time  under  the  contract,  or  under  a  modification  of  it,  if 
the  owner  accepts  the  work;  and  evidence  showing  that  the 
work  was  done  in  the  completion  of  the  structure  is  admis- 
sible.87 

Additional  matter  to  foot-note  96.88 

§  815.  Evidence  of  liability  in  case  of  failure  to  perform, 
or  abandonment.89 

§  816.    Estoppel  as  evidence.     General  rule. 
Additional     matter  to  foot-note  99.90 

G.  &  E.  Co.  (Cal.  Sup.),  115  Pac.  Rep.  313;  Linforth  v.  San  Francisco 
G.  &  E.  Co.,  156  Cal.  58,  63,  103  Pac.  Rep.  320. 

Damage*  for  breach  of  contract  to  deliver  material*!  See  Fairchlld- 
Gllmore-Wllton  Co.  v.  Southern  R.  Co.,  158  Cal.  264,  110  Pac.  Rep. 
951.  954. 

KIIIINIIM.  DamagreNt  See  Fredonla  G.  Co.  v.  Bailey,  77  Kan.  296,  94 
Pac.  Rep.  258. 

Wanhlng-ton.  Damagei*  for  delay;  presumption:  See  Goss  v.  North- 
ern Pac.  H.  Assoc.  of  Tacoma,  50  Wash.  236,  96  Pac.  Rep.  1078. 

85  See  {§315  et  seq.,  this  Supplement,  ante. 

86  California.  See  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  237,  107  Pac. 
Rep.  150. 

87  California.     Lacy  Mfg.  Co.  v.  Los  Angeles  G.  &  E.  Co.,  12  Cal.  App. 
35,  41.  106  Pac.  Rep.  413. 

88  Utah.    See  Ryan  v.  Curlew  I.  &  R.  Co.   (Utah),  104  Pac.  Rep.  218, 
220. 

so  See  SS  586  et  seq.,  this  Supplement,  ante. 

00  California.  Entoppel  by  InducInK  material-men  to  deliver  Miibne- 
quent  lots  of  material,  relying  upon  former  accounts  rendered,  re- 
tained and  acquiesced  in:  See  Stimson  M.  Co.  v.  Hughes  Mfg.  Co.,  5 
Cal.  App.  559,  97  Pac.  Rep.  322,  333. 

Oklahoma.  Estoppel  an  to  location  of  plant  by  designation  of  place: 
See  Minnetonka  O.  Co.  v.  Cleveland  V.  B.  Co.  (Okl.),  Ill  Pac.  Rep.  326. 

Oregon.  AM  to  waiver  of  performance t  See  Williams  v.  Mt.  Hood 
Ry.  and  P.  Co.  (Oreg.),  Ill  Pac.  Rep.  17.  110  Pac.  Rep.  490. 


265  EVIDENCE.  §§  816-821 

Additional  matter  to  foot-note  100.91 
§  817.     Same.    Judgment.92 

§  818.  Same.  Owner  estopped.  Where  the  owner  does 
not  file  a  notice  of  completion  of  the  building  or  cessation  of 
work,  as  required  by  the  statute,  evidence  that  the  owner 
stated  that  the  building  was  not  completed  nor  accepted, 
made  to  the  plaintiff  and  acted  upon  by  him,  is  competent 
for  the  purpose  of  proving  or  tending  to  prove  the  fact  as 
to  when  the  building  was  completed,  and  also  for  the  purpose 
of  proving  that  the  owner  is  estopped  from  claiming  that 
the  claim  of  lien  was  not  filed  in  time.93 

Additional  matter  to  foot-note  104. 94 

§  819.     Same.  Owner  estopped  by  acts  of  reputed  owner.95 

§  820.     Same.     Surety  not  estopped  to  foreclose  Uen. 
Additional  matter  to  foot-note  108. 96 

§  821.     Same.     Estoppel  of  contractors  on  bond. 
Additional  matter  to  foot-note  109. 97 


Washington.  Waiver  of  lien:  See  Pacific  L.  &  T.  Co.  v.  Dailey 
(Wash.),  Ill  Pac.  Rep.  869,  870. 

91  California.     Hubbard  v.  Lee,  6  Cal.  App.  602,  609,  92  Pac.  Rep.  744; 
s.   c.,    10   Cal.    App.    477,   102    Pac.   Rep.    528.      Seebach    v.    Kuhn,    9    Cal. 
App.   485,   99  Pac.   Rep.   723. 

Colorado.     Gillett  v.  Young,  45  Colo.  562,  101  Pac.  Rep.  766,  768. 

92  See  §  904,  this  Supplement,  post. 

93  California.      Hubbard   v.    Lee,    6    Cal.    App.    602,    92    Pac.    Rep.    744; 
s.  c.,   10  Cal.  App.   477,  102  Pac.   Rep.   528. 

94  California.     State  estopped  to  urge  that  contractor  has  not  per- 
formed   contract  Tvhen    there    is    no    fraud    on    his    part    operating    to 
prevent  discovery  of  defects:     See  City  S.  I.  Co.  v.  Marysville,  155  Cal. 
419,  428,  101  Pac.  Rep.  308. 

Colorado.  Owner  estopped  to  set  up  claim  for  damages:  See  Gil- 
let  v.  Young,  45  Colo.  562,  101  Pac.  Rep.  766,  768. 

Washington.  Estoppel  as  to  street  grading,  even  though  ordinance 
did  not  authorize  the  same:  See  Ettor  v.  City  of  Tacoma,  57  Wash. 
50,  107  Pac.  Rep.  1061. 

95  See  §§  469  et  seq.,  this  Supplement,  ante. 

96  See  §§619  and  620,  this  Supplement,  ante. 

California.  See  particularly  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep. 
857,  861;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.. 
sub  nom.  Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

97  Washington.     Contractor  and  surety  estopped  to  raise  question  of 


§§  822-826          MECHANICS'    LIENS— SUPPLEMENT.  266 

§  822.     Forfeiture  and  fraud.08 

i  823.    Same.    Rescission  as  evidence  of  fraud.00 

§  824.     Same.     Fraudulent  representations. 

§  825.    Use  of  materials  in  building. 
Additional  matter  to  foot-note  117. 10° 
Additional  matter  to  foot-note  11 8.101 
Additional  matter  to  foot-note  119. 102 

§  826.    Money  advanced. 

ultra  vires:  See  City  of  Spokane  v.  Costello,  57  Wash.  183.  106  Pac. 
Rep.  764,  766. 

os  See,  generally,  "Forfeiture  of  lien,"  §5  627  et  seq.,  and  5207,  this 
Supplement,  ante. 

oo  See  JS  326  et  seq.,  this  Supplement,  ante. 

100  Montana.     Herenay  evidence  as  to  quality  of  material:  See  Piper 
v.  Murray   (Mont.),  115  Pac.  Rep.  669,  673. 

101  Colorado.      Evidence    of    delivery    and    une    held    nufllclenti      See 
Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo.   461,  94   Pac. 
Rep.   570,    573. 

Idaho.  EntrleM  In  bookn  competent  1«»  prove  delivery  of  material: 
See  Valley  L.  and  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac.  Rep. 
24,  26. 

Kinixiis.  Evidence  of  une  of  material*  in  building  proof  that  they 
were  furnished  to  be  used  and  unless  shown  that  they  were  intended 
for  another  purpose  it  will  be  presumed  that  they  had  been  con- 
tracted for  to  be  used  in  the  building:  Smith  v.  Chicago  L.  &  C.  Co. 
(Kan.),  114  Pac.  Rep.  372,  373,  374;  Deatherage  v.  Henderson,  43  Kan. 
684.  688,  23  Pac.  Rep.  1052,  1053. 

New  Mexico.  See  Steams-Roger  Mfg.  Co.  v.  Aztec  M.  &  M.  Co.,  14 
N.  M.  300,  93  Pac.  Rep.  706,  710;  receipt  as  evidence  of  use  of  material: 
See  Neher  v.  Viviani  (N.  M.),  110  Pac.  Rep.  695,  698.  See  |  778  this 
Supplement,  ante. 

WanhlnKton.  Evidence  an  to  une  of  material*!  See  Little  Bros.  M. 
Co.  v.  Baker,  57  Wash.  311,  106  Pac.  Rep.  910. 

KiiiiMH*.  Proof  of  delivery «  See  National  S.  Co.  v.  Wyandotte  C. 
&  L.  Co.,  76  Kan.  914.  92  Pac.  Rep.  1111,  1113;  s.  c.,  sub  nom.  Atkin 
v.  Wyandotte  C.  &  L.  Co.,  73  Kan.  768,  84  Pac.  Rep.  1040,  quoting  Rice 
v.  Hodge.  26  Kan.  170. 

Oregon.  Evidence  of  delivery  of  electricity!  Grants  Pass  B.  &  T. 
Co.  v.  Enterprise  M.  Co.  (Oreg.),  113  Pac.  Rep.  859. 

\\iiNlilnKton.  Evidence  of  delivery!  See  Little  Bros.  M.  Co.  v. 
Baker,  57  Wash.  311,  106  Pac.  Rep.  — ,  quoting  Rice  v.  Hodge,  26 
Kan.  164. 

102  Colorado.     An  to  nece**lty  of  nhowlnic  what   portion  of  material* 
furnlnhed    to    subcontractor    acting    under    several    different    original 
contractors:    See   Barnes  v.   Colorado  Springs   &   C.   C.   D.   Ry.   Co.,   42 
Colo.   461,  94   Pac.   Rep.   570.   573. 


267  EVIDENCE.  §§  827?  828 

§  827.  Questions  of  fact.  The  following  are  questions  of 
fact:  Performance  of  contract;103  knowledge  of  or  consent 
to  assignment;104  and  amount  of  land  necessary  for  con- 
venient use  and  occupation  of  the  structure.105  Where 
there  is  a  conflict  in  the  evidence  as  to  the  time  of  perform- 
ance or  completion  of  the  contract,  and  no  time  for  perform- 
ance is  stated  in  the  contract,  it  is  a  question  of  fact  whether 
or  not  the  building  was  completed  within  a  reasonable 
time;106  and  likewise  whether  notice  has  been  given  to  a 
surety  within  a  reasonable  time  is  a  question  of  fact.107 

Additional  matter  to  foot-note  131. 108 

§  828.  Questions  of  law.  Whether  an  amount  is  due  and 
owing,109  and  "payable,"110  or  whether  liens  were 
"valid,"111  or  whether  a  building  was  an  unlawful  struct- 
ure,112 is  a  conclusion  of  law.  AVhere  there  is  no  dispute  as 
to  the  time  of  performance  and  no  time  is  specified  in  the 
contract,  it  is  a  question  of  law  for  the  court  as  to  whether 
the  contract  was  performed  within  a  reasonable  time.113 

103  Colorado.     Idaho  G.  C.  M.  &  M.  Co.  v.  Colorado  I.  W.  Co.   (Colo.), 
Ill   Pac.  Rep.   553,   555. 

Oregon.  Coffey  v.  Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079;  s.  c.,  52 
Oreg.  545,  97  Pac.  Rep.  1081;  s.  c.,  52  Oreg.  546,  97  Pac.  Rep.  1082. 

104  Washington.     Strandell  v.  Moran,  49  Wash.  533,  95  Pac.  Rep.  1106. 

105  Utah.     Park  City  M.  Co.  v.  Comstock  S.  M.   Co.    (Utah),   101   Pac. 
Rep.   254,   259. 

106  New  Mexico.     Neher  v.   Viviani    (N.   M.),    110   Pac.   Rep.    695,  697; 
Cowles  v.   Hagerman    (N.   M.),   110  Pac.   Rep.   843,   844;   s.   c.,  sub   nom. 
Hagerman  v.  Cowles,  14  N.  M.  422,  94  Pac.  Rep.  946,  but  see  §  828,  this 
Supplement,  post. 

107  California.     Bacigalupi  v.   Phoenix   B.    &   C.    Co.    (Cal.   App.),    112 
Pac.   Rep.   892,   895. 

108  California.     Hill  v.  Clark,  7  Cal.  App.  609,  611,  95  Pac.  Rep.  382. 
Montana.     Piper  v.  Murray    (Mont.),  115  Pac.  Rep.   669,   672. 
Oregon.     Edmunds  v.  Welling  (Oreg.),  110  Pac.  Rep.  533. 

109  California.     Burke   v.   Dittus,   8   Cal.   App.    175,    178,   96   Pac.   Rep. 
330;  Beck  v.  Schmidt,   13  Cal.  App.   448,   110  Pac.  Rep.   455,  457;   Irwin 
v.  Insurance  Co.   of  N.  A.    (Cal.  App.),   116  Pac.  Rep.   294. 

Utah.     Chesney  v.  Chesney,   33  Utah   503,  94  Pac.  Rep.   989. 
no  California.     Irwin  v.  Insurance  Co.  of  N.  A.   (Cal.  App.),  116  Pac. 
Rep.   294. 

111  Oregon.      Equitable   S.    &   L.    Assoc.    v.    Hewitt    (Oreg.),    106    Pac. 
Rep.   447,   450. 

112  Oregon.     Morton  v.  Wessinger   (Oreg.),  113  Pac.  Rep.   7. 

us  New  Mexico.  Neher  v.  Viviani  (N.  M.),  110  Pac.  Rep.  695,  697; 
Cowles  v.  Hagerman  (N.  M.),  110  Pac.  Rep.  843-844;  s.  c.,  sub  nom. 
Hagerman  v.  Cowles,  14  N.  M.  422,  94  Pac.  Rep.  946. 


§§  828-831          MECHANICS'    LIENS — SUPPLEMENT.  o(;,s 

It  cannot  be  said  as  a  matter  of  law  that  the  completion  of 
a  contract  to  do  the  plumbing  in  a  house  in  the  course  of 
construction  is  a  completion  of  the  building.114  The  con- 
struction of  a  written  building  contract  is  for  the  court  and 
not  for  the  jury;115  and  the  sufficiency  of  the  consideration 
under  an  oral  contract  is  for  the  determination  of  the 
court.110 

Additional  matter  to  foot-note  134.117 

§  829.  Value.  Valid  contract  as  evidence  thereof.  Ac- 
tion on  implied  contract.  Where  the  claimant  offers  to 
prove  the  contract  and  the  furnishing  of  the  materials  there- 
under, in  the  absence  of  any  objection  this  seems  to  include 
proof  of  the  value  of  the  materials  as  specified  in  the  con- 
tract.118 

Additional  matter  to  foot-note  140.119 

§  830.     Same.     Common  counts. 
Additional  matter  to  foot-note  141. 12° 

§  831.  Same.  Contract  as  evidence  of  extra  work.  Ex- 
press contract. 

Additional  matter  to  foot-note  142. 121 

IK  Oregon.  Coffey  v.  Smith,  52  Oreg.  538,  97  Pac.  Rep.  1079;  s.  c., 
52  Oregr.  545,  97  Pac.  Rep.  1081;  s.  c.,  52  Oreg.  546,  97  Pac.  Rep.  1082. 

us  New  Mexico.     Neher  v.  Vivian!   (N.  M.),   110  Pac.  Rep.  695,  698. 

110  Washington.  Evans  v.  Oregon  &  W.  R.  Co.,  58  Wash.  429,  108 
Pac.  Rep.  1095,  1097. 

iiT  California.  Whether  causes  of  delay  extending  time  to  complete 
contract  not  a  question  of  law  unless  so  provided  in  the  contract: 
See  Lacy  Mfg.  Co.  v.  Los  Angeles  G.  &  E.  Co.,  12  Cal.  App.  37,  42,  106 
Pac.  Rep.  413. 

us  California.  D.  I.  Nofziger  L.  Co.  v.  Solomon,  13  Cal.  App.  621, 
110  Pac.  Rep.  474,  477. 

119  California.      See   Falrchild-Gilmore-Wilton   Co.,    158   Cal.    264,    110 
Pac.  Rep.  951,  954;  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep. 
760,  764;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

\\nNhiiiKtnn.  See  Home  v.  Chicago  M.  &  P.  S.  Ry.  Co.  (Wash.),  109 
Pac.  Rep.  799. 

120  California.     Lacy   Mfg.   Co.   v.   Los   Angeles  G.   &   E.   Co.,   12   Cal. 
App.   37,   42.   106   Pac.   Rep.    413.     See   Barrett-Hicks  Co.  v.   Glas    (Cal. 
App.),   Ill  Pac.  Rep.  760,  764;  e.  c.,  9  Cal.  App.   491,  99  Pac.  Rep.   856; 
s.  c.,  sub  nom.  Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Utah.    Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.  1004,  1007. 

121  See  f  797,  this  Supplement,  ante. 


269  EVIDENCE.  §§  832-834 

§  832.    Same.    Void  contract. 
Additional  matter  to  foot-note  143.122 

§  833.    Same.    Market  price.    Usual  price. 
Additional  matter  to  foot-note  149. 123 

§  834.  Same.  Other  evidence  of  value.  In  an  action 
against  the  original  contractor  and  his  surety  for  breach  of 
contract  upon  abandonment,  the  actual  cost  of  completion  is 
some  evidence  of  the  value  or  reasonable  cost,  where  the 
owner  receives  bids  for  completing  the  work  and  gives  the 
contract  to  the  lowest  bidder.124 

Additional  matter  to  foot-note  153. 125 


122  California.     Coghlan    v.    Quartararo    (Gal.    App.),    115    Pac.    Rep. 
664,   666. 

The   statutory   original   contract   was   abolished    by   Stats.   &   Amdts. 
1911,  pp.  1313  et  seq. 

123  California.     "Price"  as   Indicating  money  or   some  other  equiva- 
lent:    See  Kinard  v.  Jordan,  10  Cal.  App.   219,   101  Pac.   Rep.   696,   698. 

124  California.      Bacigalupi  v.   Phoenix   B.    &   C.   Co.    (Cal.   App.),   112 
Pac.  Rep.  892. 

125  California.     Evidence    held    sufficient    shows    the    competency    of 
builder  to  give  opinion  as  to   cost  of   repairing  building:      Higgins  v. 
Los  Angeles  G.  &  E.  Co.   (Cal.  Sup.),  115  Pac.  Rep.  313. 

Idaho.      Owner   of   personal    property   qualified   to    state   value:      See 
Rankin  v.  Caldwell,   15  Idaho  625,   99  Pac.  Rep.   108. 

Oregon.     Brown  v.  Truax   (Oreg.),  115  Pac.  Rep.  597,  599. 


j§  835-839  MECHANICS'    LIENS— SUPPLEMENT.  270 


•   CHAPTER  XXXIX. 

VARIANCES. 

§  835.    Variances.     Generally. 
Additional  matter  to  foot-note  I.1 

§  836.     Claim  of  lien.    Pleadings.     Proof.     Generally. 
Additional  matter  to  foot-note  6.2 
Additional  matter  to  foot-note  7.3 
Additional  matter  to  foot-note  8.4 

§  837.     Claim  of  lien.     Pleadings.     Material  variances."1 
§  838.     Same.     Persons  contracting.     Husband  and  wife.0 

§  839.  Same.  Immaterial  variances.  Whore  the  claim 
of  lien  sets  forth  that  the  name  of  the  owner  and  reputed 
owner  of  the  building  is  a  certain  person  and  the  complaint 
alleges  that  the  material  was  furnished  to  said  persons  and 
other  persons,  owners  of  the  property,  and  the  answer  does 
not  deny  the  allegation  of  the  complaint  in  reference  to  the 
ownership  it  is  not  a  variance.7 

i  \  iiiciiiliiM-ni  of  claim  of  lirn  by  »tatutory  permlftitlon,  see  §  415,  this 
Supplement,  ante. 

Oregon.  Departure  In  pleadlngns  See  Pioneer  H.  Co.  v.  Farrln 
(Oreg.).  107  Pac.  Rep.  456. 

-'California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  651,  103  Pac.  Rep.  157. 

Expren*  contract  and  implied  promlite!  See  Lacy  Mfg.  Co.  v.  Los 
Angeles  G.  &  E.  Co.,  12  Cal.  App.  37,  41,  106  Pac.  Rep.  413. 

3  California.     Separate  contract   for  Indemnity  not  part  of  contract 
of   contractor:     See   Barrett-Hicks   Co.   v.   Glas    (Cal.    App.),    Ill    Pac. 
Rep.   760,   765;  8.  c.,  9  Cal.  App.   491,   99   Pac.   Rep.   856;  s.  c.,  sub  nom. 
Burnett  v.  Glas,   154  Cal.   249,   97  Pac.   Rep.   423. 

4  Montana.     Joint   contract   alleged   and   evidence   showing   separate 
contract;    no    failure    of    proof:     Logan    v.    Billings    &    N.    R.    Co.,    40 
Mont.   467.   107   Pac.  Rep.   415. 

s  See  "Claim  of  lien,"  generally,  |§  370  et  seq.,  this  Supplement,  ante. 

6  See   |849,   this  Supplement,   post. 

-  California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  650,  103  Pac.  Rep.  157. 


271  VARIANCES.  §§  840-846 

§  840.  Same.  Valid,  void  contract.  Owner  purchasing 
directly.8 

§  841.     Same.    Description  of  property.0 

§  842.     Same.    Payments. 
Additional  matter  to -foot-note  17. 10 

§  843.  Claim  of  lien  and  proof.  Generally.  The  test  as 
to  the  sufficiency  of  the  claim  of  lien  with  respect  to  the  terms 
and  conditions  of  the  contract  is  whether  such  notice  so  far 
departs  from  the  terms  and  conditions  of  the  contract  as  to 
render  it  misleading  to  the  injury  of  the  owner.  If  it  does, 
the  variance  is  fatal.  If,  however,  there  is  a  substantial 
agreement  between  the  contract  and  claim,  so  that  there 
can  not  arise  in  the  mind  of  the  owner  any  misapprehension 
as  to  the  extent  and  nature  of  the  lienor's  claim,  then  any 
technical  variance  which  may  appear  will  be  immaterial.11 

§  844.     Same.    Material  variances. 
Additional  matter  to  foot-note  20. 12 

§  845.     Same.     Time  of  payment. 
Additional  matter  to  foot-note  26. 13 

§  846.     Same.    Nature  of  labor. 
Additional  matter  to  foot-note  27. 14 

8  California.      The    Statutory    Original    Contract    was    abolished    by 
Amendment    of    May    1,    1911,    to    §  1183,    Code    Civ.    Proc.    (Stats,    and 
Amdts.   1911,  pp.  1313  et  seq.). 

See  §§  258,  269,   274,  281,  288  and  328,  this  Supplement,  ante. 

9  See  "Description,"  §§  399  et  seq.,  this  Supplement,  ante. 

10  California.     Terms  of  payment  as  stated  in  contract  and  claim  of 
lien;  held  no  variance:     See  Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  229, 
232,  101  Pac.  Rep.  691. 

11  California.     Barrett-Hicks  Co.  v.   Glas    (Cal.   App.),   Ill    Pac.   Rep. 
760,  764;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett 
v.   Glass,  154   Cal.   249,   97  Pac.   Rep.   423. 

12  California.      But    see    generally    Barrett-Hicks    Co.    v.    Glas    (Cal. 
App.),   Ill  Pac.  Rep.   760,   764;  s.  c.,   9  Cal.  App.   491,  99  Pac.   Rep.   856; 
s.  c.,  sub  nom.  Burnett  v.  Glas,  154  Cal.  249,   97  Pac.  Rep.   423. 

is  California.  But  see  Lucas  v.  Rea,  10  Cal.  App.  641,  645,  102  Pac. 
Rep.  822,  101  Pac.  Rep.  537. 

14  New  Mexico.  See  Gray  v.  New  Mexico  B.  S.  Co.  (N.  M.),  110  Pac. 
Rep.  603,  605. 


§§847-850          MECHANICS'    LIENS — SUPPLEMENT.  272 

§  847.  Same.  Deducting  credits  and  offsets.  Amount 
paid.  There  is  no  material  difference  between  the  statement 
of  the  amount  due  without  setting  up  the  credits  and  the 
statement  of  the  .whole  amount  of  the  debit  side  of  the 
account  and  also  of  the  credits.15 

Additional  matter  to  foot-note  28.1(J 

§  848.  Same.  Immaterial  variances.  Where  the  claim 
of  lien  sets  forth  that  the  name  of  the  owner  and  reputed 
owner  of  the  building  is  a  certain  person  and  the  evidence 
shows  that  he  was  the  owner  of  the  property  until  the  build- 
ing was  completed,  when  it  was  conveyed  to  another  person 
for#vhom  he  acted  as  agent  throughout  the  entire  transac- 
tion, there  is  no  variance.17 

§  849.  Same.  Person  contracting.  A  claim  stated  that 
the  material  was  sold  and  furnished  to  C.  and  the  complaint 
so  alleged;  and  the  evidence  showed  that  the  material  was 
sold  to  H.  and  the  court  found  that  the  material  was  sold, 
furnished  and  delivered  to  W.,  H.  and  a  fourth  person ;  held 
that  the  lien  was  invalid.18 

Additional  matter  to  foot-note  32. 19 

§  850.    Same.    Contract.    Date  of  contract. 
Additional  matter  to  foot-note  33.20 


x  is  California.  Lucas  v.  Rea,  10  Cal.  App.  641.  646,  102  Pac.  Rep.  822. 
101  Pac.  Rep.  537. 

ie  California.  See  Lucas  v.  Rea,  10  Cal.  App.  641,  645,  102  Pac.  Rep. 
822,  101  Pac.  Rep.  537. 

IT  California.     Lucas  v.  Gobbi,  10  Cal.  App.  648,  650,  103  Pac.  Rep.  157. 

is  California.    Hogan  v.  Bigler,  8  Cal.  App.  71,  96  Pac.  Rep.  97. 

IB  Oregon.  Where  the  claim  of  Hen  sets  forth  that  the  material 
and  labor  was  furnished  upon  a  contract  with  a  certain  person  as 
the  subcontractor  under  another  person  as  an  original  contractor  and 
the  evidence  shows  that  such  original  contractor  contracted  with  the 
owner  to  construct  the  building  but  there  is  no  evidence  of  any 
contractual  relation  between  such  alleged  subcontractor  and  the  origi- 
nal contractor,  there  is  a  fatal  variance:  Equitable  S.  &  L.  Assoc. 
v.  Hewitt  (Oreg.),  106  Pac.  Rep.  447,  450. 

20  California.  Where  the  claim  of  lien  and  complaint  alleged  a  cer- 
tain amount  due  for  material,  including  labor  for  delivery  thereof, 
such  reference  to  labor  is  immaterial  and  may  be  rejected  as  sur- 
plusage, where  the  evidence  shows  that  no  extra  charge  was  made 


273  VARIANCES,  §§  851-855 

§  851.  Same.  Implied  Contract.  Express  contract.  Where 
the  material-man 's  claim  of  lien  states  that  the  contractor 
agreed  to  pay  for  material  at  the  current  market  or  list 
prices  for  such  material  in  the  market  at  a  certain  rate  on 
demand,  and  the  evidence,  as  a  whole,  shows  that  the  ma- 
terial was  to  be  paid  for  upon  demand  after  delivery,  and 
that  it  was  the  practice  of  the  claimant  not  to  make  such 
demand  until  after  the  completion  of  the  building,  there  is 
no  fatal  variance.21  Where  the  complaint  and  claim  of  lien 
set  forth  an  express  contract  and  the  evidence  shows  no 
agreement  to  pay  a  definite  amount,  there  is  no  variance.22 

§  852.  Same.  Nature  of  work.  Where  the  complaint  al- 
leged that  the  material  was  furnished  for  the  construction  of 
a  "dwelling,"  and  the  evidence  showed  that  part  of  the  ma- 
terial was  used  in  a  wood-shed  on  the  same  lot,  the  latter  was 
considered  part  of  the  dwelling,  and  there  was  no  variance.23 

Additional  matter  to  foot-note  38. 24 

§  853.     Pleading  and  proof.     Generally. 

§  854.    Same.    Material  variances.     Contract.25 

§  855.  Same.  Valid,  void  contract.  Contracting  directly 
with  owner  or  agent. 

Additional  matter  to  foot-note  44.26 

therefor,  that  is,  that  the  price  of  the   lumber   included  the   d3livery: 
Lucas  v.  Gobbi,  10  Cal.  App.  648,  653,  103  Pac.  Rep.  157. 

21  California.     San  Pedro  L.  Co.  v.  Schroeder,   156  Cal.   158,  103  Pac. 
Rep.    888. 

22  California.    Lucas  v.  Gobbi,  10  Cal.  App.  648,  652,  103  Pac.  Rep.  157. 

23  California.  Lucas  v.  Gobbi,  10  Cal.  App.  648,  651,  103  Pac.  Rep.  157. 

24  New  Mexico.     As  to  nature  of  labor  in  a  mining  claim:     See  Gray 
v.  New  Mexico  P.  S.  Co.   (N.  M.),  110  Pac.  Rep.  603,  605. 

Washington.  As  to  "construction"  and  "alteration,"  "improvement 
or  repair":  See  Stetson  &  Post  L.  Co.  v.  W.  &  J.  Sloane  Co.  (Wash.), 
112  Pac.  Rep.  248,  24*9,  250. 

25  See   §  351,   this   Supplement,  ante. 

26  California. .    As    to    contracting    directly    with    owner    under    void 
contract:     See  Lucas  v.   Rea,   10   Cal.  App.   641,   102   Pac.   Rep.   822,   101 
Pac.  Rep.  537. 

The  Statutory  Original  Contract  was  abolished  by  Amendment  of 
May  1,  1911,  to  §  1183,  Code  Civ.  Proc.  (Stats,  and  Amdts.  1911,  pp. 
1313  et  seq.). 

Bloom's  Sup. — 18 


§§856-863          MECHANICS'    LIENS— SUPPLEMENT.  £74 

§  856.    Same.    Indefinite  contract.27 

• 
£  857.    Same.    Person  contracting.28 

§  858.     Same.     Nature  of  work.29 

§  859.     Same.     Fund.     Contractual  indebtedness. 

§  860.  Same.  Immaterial  variances.  Where  there  are 
several  contracts  to  paint  four  houses  and  the  evidence 
shows  an  agreement  made  at  the  same  time  to  paint  the 
fifth  house,  it  does  not  constitute  a  variance.30 

Additional  matter  to  foot-note  50.31 

§  861.    Same.    Time  of  payment. 
Additional  matter  to  foot-note  53. 32 

§  862.  Same.  Subclaimant.  Owner's  employees.  Where 
the  complaint  alleges  that  the  material  was  furnished  to 
three  persons  named,  owners  of  the  property,  and  there  is 
no  denial  of  the  allegation  of  ownership,  and  the  evidence 
shows  that  one  of  the  persons  named  was  the  owner  of  the 
property  until  the  building  was  completed,  when  he  con- 
veyed it  to  another  of  the  persons  named,  for  whom  he  acted 
as  agent  throughout  the  entire  transaction,  there  is  no  vari- 
ance.33 

Additional  matter  to.  foot-note  54.34 

§  863.     Same.     Bond.     Signed  by  principals.     Unsigned. 

See  §5  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

27  See  SS  208  and  296  et  seq.,  this  Supplement,  ante. 

28  See  SS  381  et  seq.,  this  Supplement,  ante. 

29  See  Si  130  et  seq.,  and  395,  this  Supplement,  ante. 

so  California.  Rockwell  v.  Light,  6  Cal.  App.  563,  566,  92  Pac.  Rep. 
649. 

si  California.    Lucas  v.  Gobbi,  10  Cal.  App.  648,  652,  103  Pac.  Rep.  157. 

82  California.  Term*  of  payment*  See  Otis  E.  Co.  v.  Brainerd,  10 
Cal.  App.  229,  232,  101  Pac.  Rep.  691. 

ss  California.    Lucas  v.  Gobbi,  10  Cal.  App.  648,  650,  103  Pac.  Rep.  157. 

34  Montana.  Joint  contract  alleged;  separate  contract  with  some 
proved;  no  variance:  Logan  v.  Billings  &  N.  R.  Co.,  40  Mont.  467, 
107  Pac.  Rep.  415. 

ss  See  SS  608  et  seq.,  this  Supplement,  ante. 


275  TRIAL  AND  PRACTICE.  ss  864-866 


CHAPTER  XL. 

TRIAL  AND  PRACTICE. 

§  864.     Practice.     In  general. 
Additional  matter  to  foot-note  I.1 

§  865.    Amendment.    Express  and  implied  contract. 
Additional  matter  to  foot-note  4.2 

§  866.     Same.     Modification  of  contract. 


1  California.     Setting  aside  judgment  and  filing  amended  complaint: 
See  Lemon  v.  Hubbard,  10  Cal.  App.  471,  476,  102  Pac.  Rep.   554. 

Idaho.  As  to  bill  of  particulars,  see  Nelson  Bennett  Co.  v.  Twin 
Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  794,  92  Pac.  Rep.  980. 

Kansas.  Dismissal  of  action:  See  Barney  v.  Ferguson  (Kan.),  114 
Pac.  Rep.  1055;  Deatherage  L.  Co.  v.  Miles  (Kan.),  116  Pac.  Rep.  505. 

Montana.  Inspection  of  building  in  discretion  of  court:  Piper  v. 
Murray  (Mont.),  115  Pac.  Rep.  659,  673. 

Oklahoma.  Change  of  venue:  See  Jones  v.  Balsley  (Okl.).,  Ill  Pac. 
Rep.  942;  s.  c.,  25  Okl.  344,  106  Pac.  Rep.  830. 

Washington.  Bill  of  particulars:  See  Bellingham  v.  Linck,  53 
Wash.  208,  101  Pac.  Rep.  843,  844. 

Recovery  on  bond  In  action  to  foreclose  lien;  sureties  must  be 
served  with  process  or  make  appearance  before  judgment  can  be 
entered  against  them:  Kalb-Gilbert  L.  Co.  v.  Cram  (Wash.),  Ill  Pac. 
Rep.  1050;  s.  c.,  57  Wash.  550,  107  Pac.  Rep.  281  (Maritime  lien). 

2  Striking   amended   complaint    from    files:      See    Klokke    v.    Raphael, 
8  Cal.  App.   1,  4,  96  Pac.  Rep.   392. 

motion  to  amend  conclusions  of  law  so  as  to  avoid  a  lien:  See 
Hubbard  v.  Lee,  10  Cal.  App.  477,  479,  102  Pac.  Rep.  528;  s.  c.,  6  Cal. 
App.  602,  92  Pac.  Rep.  744. 

Colorado.  Amending  complaint  declaring  as  subcontractor  so  as  to 
allege  claimant  to  be  principal  contractor,  in  order  to  show  that  lien 
statement  was  filed  within  time:  See  Foley  v.  Coon,  41  Colo.  432, 
93  Pac.  Rep.  13,  14. 

Kansas.  Amendment  setting  forth  conditional  interest  in  the  prop- 
erty subsequently  acquired:  See  Robert  Garret  L.  Co.  v.  Loftus,  82 
Kan.  556,  109  Pac.  Rep.  179,  180. 

Kansas.  Refusal  of  amendment:  See  McCullough  v.  S.  J.  Hayde 
C.  Co.,  82  Kan.  734,  109  Pac.  Rep.  176. 

Utah.  Amendment  from  express  to  Implied  contract:  See  Foulger 
v.  McGrath,  34  Utah  86,  95  Pac.  Rep.  1004. 

Washington.  Amendment  of  claim  of  lien  under  statutory  allow- 
ance: See  Stetson  &  Post  L.  Co.  v.  W.  &  J.  Sloane  Co.  (Wash.), 
112  Pac.  Rep.  248;  Brown  v.  Trimble,  48  Wash.  270,  93  Pac.  Rep.  317. 


§§  867-870          MECHANICS'    LIENS— SUPPLEMENT.  276 

§  867.     Same.     Description  of  property.'5 
Additional  matter  to  foot-note  7.4 


§  868.  Same.  Relation  of  amendment  to  time  of  com- 
mencing action. 

Additional  matter  to  foot-note  8.5 

$  869.  Consolidation  of  actions.  Consolidation  of  action 
for  the  purpose  of  trial  of  all  the  eases  does  not  change  the 
issues  in  the  respective  cases,  nor  render  the  admissions  of 
the  pleadings  ineffectual  when  applied  to  the  particular  cases 
in  which  they  are  made.6  But  where  one  of  the  subclaim- 
ants  sets  up  in  his  complaint  a  valid  and  properly  filed  origi- 
nal contract  and  the  action  is  subsequently  consolidated  with 
others  alleging  facts  showing  that  the  original  contract  is 
void,  the  finding  thereon  binds  all  the  parties  to  the  action 
and  any  of  the  plaintiffs  can  deny  the  validity  of  the  con- 
tracts.7 Actions  to  foreclose  liens  of  subclaimants  may  be 
properly  consolidated,  and  though  the  liens  may  fail,  per- 
sonal judgments  may  be  entered  against  the  original  con- 
tractor. 

Additional  matter  to  foot-note  10.8 

§  870.     Same.    Rights  of  claimants  against  one  another. 
Additional  matter     to  foot-note  16.ft 


3  See  H  399  et  seq.,  this  Supplement,  ante. 

4  WanlilDKton.     See  Brown  v  Trimble,  48  Wash.  270,  93  Pac.  Rep.  317. 
s  California.     See  Lemon  v.  Hubbard,  10  Cal.  App.  471,  476,  102  Pac. 

Rep.  554. 

e  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  526, 
97  Pac.  Rep.  420. 

T  California.  Coghlan  v.  Quartararo  (Cal.  App.),  115  Pac.  Rep.  664, 
666. 

8  Kanaaa.     Refusal  to  consolidate  action  for  breach  of  construction 
contract   against    subcontractor   and   surety    with   action    to    foreclose 
lien    by    subcontract,    properly    denied,     where    contractor    admitted 
liability,  less  amount  of  damages  claimed  in  action  for  breachi    McCul- 
lough  v.  S.  J.  Hayde  C.  Co.,  82  Kan.  734,  109  Pac.  Rep.  176. 

\YiiMiiinKt«n.     See  Ferdig  v.  Simpson,  47  Wash.  475,  92  Pac.  Rep.  370. 

9  California.     Compare  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App. 
514,  520,  97  Pac.  Rep.   414/420. 


277  TRIAL   AND   PRACTICE.  e  37^ 

§  871.  Deposit  of  money  in  court.  In  New  York,  where 
the  statute  authorizes  the  owner  to  discharge  liens  by  deposit- 
ing in  court  the  amount  of  the  claim,  it  is  well  settled  that 
upon  such  deposit  being  made,  the  lien  is  shifted  from  the 
land  to  the  fund  in  court,  and  that  no  lien  claimant  who  fails 
to  establish  his  right  to  a  lien  is  entitled  to  share  in  such 
fund;10  and  this  rule  was  held  applicable  under  a  statute  not 
providing  for  such  deposit.11 

Where  the  terms  of  the  deposit  are  general,  the  deposit 
serves  the  purpose  of  saving  the  owner  from  costs,  and  it 
must  continue  to  remain  in  the  custody  of  the  court  to  abide 
the  final  judgment  in  the  case.  It  cannot  be  withdrawn 
pending  an  appeal,  as  it  would  take  away  the  spirit  and  vi- 
tality of  the  court's  judgment;  and  in  California  no  such 
right  is  deducible  from  the  statutory  provision  relating  to 
appeals  and  stay  of  execution.12 

To  abide  the  judgment.  And  when  a  deposit  of  the  fund 
is  made  into  the  court  by  the  owner  "to  abide  the  judgment 
of  the  court,"  this  is  construed  to  mean  the  final  judgment; 
and  there  is  no  final  judgment  while  the  appeal  is  pending.13 

If  the  County  Treasurer  holds  the  fund,  he  does  so  as  the 
custodian  of  the  court ;  and  the  owner  is  not  entitled,  during 
an  appeal,  to  a  writ  of  mandate  to  compel  the  return  of  the 
deposit,  where  the  court  does  not  make  an  order  for  its  re- 
turn.13 

Additional  matter  to  foot-note  18. 14 


10  California.     Stockton    L.    Co.    v.    Schuler,    155    Cal.    411,    413,    101 
Pac.  Rep.   307. 

New  York.  Ward  v.  Kilpatrick,  85  N.  Y.  413,  39  Am.  Rep.  674;  Schil- 
linger,  etc.,  Co.  v.  Arnott,  86  Hun.  182,  33  N.  T.  Supp.  343,  affirmed, 
152  N.  Y.  584,  46  N.  E.  Rep.  956. 

11  California.     Stockton  L.  Co.  v.  Schuler,   155  Cal.   411,  413,  101  Pac. 
Rep.  307. 

12  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  523, 
97  Pac.  Rep.  414,  420. 

is  California.  Higgins  v.  Keyes,  5  Cal.  App.  482,  90  Pac.  Rep.  972. 
See  Los  Angeles  P.  B.  Co.  v.  Hlggins,  8  Cal.  App.  514,  523,  97  Pac.  Rep. 
414. 

14  Kansas.  As  to  equitable  power  of  court  to  authorize  substitu- 
tion of  deposit  for  lien  and  authorize  release,  in  absence  of  statutory 
permission:  See  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac. 
Rep.  1003,  1005. 


§§872,873         MECHANICS'    LIENS— SUPPLEMENT. 

§  872.  Same.  Payment  of  balance  of  fund.15  When  the 
fund  is  deposited  with  the  clerk  of  the  court  it  is  his  duty, 
unless  otherwise  directed  by  law  or  order  of  court,  to  pay 
it  over  to  the  treasurer.16 

The  right  of  the  court  to  distribute  that  portion  of  the 
sura  awarded  to  the  contractor  upon  the  deposit  in  the  court 
by  the  owner  among  the  persons  obtaining  personal  judg- 
ments against  the  contractor  is  a  matter  which  concerns  the 
contractor  only,  and  the  owner  cannot  question  the  same. 
The  owner  is  only  interested  in  having  returned  to  him  what- 
ever excess  of  the  fund  there  may  be  over  and  above  the 
amount  found  due  to  the  original  contractor.17 

Additional  matter  to  foot-note  19. 18 

Additional  matter  to  foot-note  20.19 

S5  873.    Intervention.    Effect  of. 
Additional  matter  to  foot-note  21. 20 


Washington.  Tender:  See  Hughes  &  Co.  v.  Flint  (Wash.),  112 
Pac.  Rep.  633,  635. 

As  to  tender  into  Court:  See  Ferdlg  v.  Simpson,  47  Wash.,  475, 
92  Pac.  Rep.  370. 

15  Deposit  OB  condemnation  proceeding*  taking  place  of  property 
upon  which  lien  exIMm  See  North  Coast  Ry.  Co.  v.  Hess,  56  Wash. 
335,  105  Pac.  Rep.  853;  Omaha  B.  &  T.  Co.  v.  Reed,  69  Neb.  514,  96  N. 
W.  Rep.  276:  Calumet  River  Ry.  Co.  v.  Brown,  136  111.  322,  26  N.  E. 
Rep.  501,  12  L.  R.  A.  84:  Watson  v.  New  York  C.  R.  Co..  47  N.  Y.,  162; 
Utter  v.  Richmond.  112  N.  Y.,  610,  20  N.  E.  Rep.  554. 

10  California.  Higgins  v.  Keyes,  5  Cal.  App.  482,  484,  90  Pac.  Rep. 
972.  See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  523,  97 
Pac.  Rep.  414. 

IT  California.  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  522, 
97  Pac.  Rep.  414,  420,  (and  it  was  deemed  unnecessary  to  determine 
whether  the  trial  court  was  or  was  'not  authorized  either  by  the 
statute  or  the  terms  of  the  deposit  to  distribute  the  fund  among  those 
merely  obtaining  personal  judgments  against  the  contractor,  and  who 
had  not  established  their  liens  against  the  property  of  the  owner). 

is  See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  522,  97  Pac. 
Rep.  414,  420. 

19  California.     See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
523.  97  Pac.  Rep.  414,  420;  Higgins  v.  Keyes,  5  Cal.  App.  482,  90  Pac. 
Rep.  972. 

20  California.     See  Hartwell  v.  Ganahl  L.  Co.,  8  Cal.  App.  733,  97  Pac. 
Rep.   901. 

Wyoming.  See  Greenawalt  v.  Natrona  I.  Co.,  16  Wyo.,  226,  92  Pac. 
Rep.  1008. 


279  TRIAL   AND    PRACTICE.  se  374.    375 

§  874.     Same.     Right  to  intervene. 

Additional  matter  to  foot-note  23. 21 

§  875.    Jury  trial. 

Additional  matter  to  foot-note  24.22 

Additional  matter  to  foot-note  25. 23 

Additional  matter  to  foot-note  26. 24 

21  Colorado.     Bringing    in    other    parties:     See    Barnes    v.    Colorado 
Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo.  461,  94  Pac.  Rep.  570,  572. 

22  Instructions: 

California.  As  to  changes  in  plans  and  delay  in  completion:  See 
Lacy  Mfg.  Co.  v.  Los  Angeles  G.  &  E.  Co.,  12  Cal.  App.  37,  42,  106  Pac. 
Rep.  413. 

As  to  sequence  of  Injury  and  breach:  Lacy  Mfg.  Co.  v.  Los  An- 
geles G.  &  E.  Co.,  supra. 

As  to  extending  time  to  complete  contract  because  of  delay  and 
changes  made:  See  Lacy  Mfg.  Co.  v.  Los  Angeles  G.  &  E.  Co.,  supra. 

Colorado.  As  to  additional  time  for  performance  equal  to  delay 
caused  by  owner:  See  Idaho  G.  C.  M.  &  M.  Co.  v.  Colorado  I.  W.  Co. 
(Colo.),  Ill  Pac.  Rep.  553. 

As  to  allowance  of  interest:  See  Idaho  G.  C.  M.  &  M.  Co.  v.  Colorado 
I.  W.  Co.,  supra. 

As  to  performance  of  contract:  See  Idaho  G.  C.  M.  &  M.  Co.  v. 
Colorado  I.  W.  Co.,  supra. 

Montana.  As  to  waiver  of  certificate:  See  Piper  v.  Murray  (Mont.), 
115  Pac.  Rep.  669,  673. 

As  to  construction  of  contract:      Piper  v.  Murray,  supra. 

New  Mexico.  As  to  items  in  cost  of  construction:  See  Neher  v. 
Vivian!  (N.  M.),  110  Pac.  Rep.  695,  697. 

Utah.  As  to  completion  of  dam:  See  Ryan  v.  Curlew  I.  &  R.  Co. 
(Utah),  104  Pac.  Rep.  218,  222. 

As  to  contract  for  digging  well:  See  Prye  v.  Kelbaugh,  34  Utah 
306,  97  Pac.  Rep.  331,  333. 

Washington.  As  to  rescission  of  written  contract:  See  Evans  v. 
Oregon  &  W.  R.  Co.,  58  Wash.  429,  108  Pac.  Rep.  1095,  1097. 

Instructions  generally: 

Kansas.  See  Wichita  S.  &  D.  Co.  v.  Weil,  80  Kan.  606,  103  Pac. 
Rep.  1003,  1005. 

Montana.     Piper  v.  Murray  (Mont.),  115  Pac.  Rep.  669,  673. 

Utah.     See  Ryan  v.  Curlew  I.  &  R.  Co.  (Utah),  104  Pac.  Rep.  218,  222. 

Jury  trial?  Special  issue:  See  Burke  v.  Dittus,  8  Cal.  App.  175,  176, 
96  Pac.  Rep.  330. 

23  California.     Coghlan  v.  Quartararo   (Cal.  App.),  115  Pac.  Rep.  664, 
666. 

Oklahoma.     But  see  Jones  v.  Balsley   (Okl.),  Ill  Pac.  Rep.  942;  s.  c., 

25  Okl.  344,  106  Pac.  Rep.  830. 

Oregon.     Edmunds  v.  Welling   (Oreg.),  110  Pac.   Rep.   533 
Washington.      Pacific  I.  &  S.  Works  v.  Goerig,  55  Wash.  149,  104  Pac. 

Rep.   151. 

24  California.     See    Coghlan    v.     Quartararo     (Cal.     App.),     115     Pac. 
Rep.   664,  666. 

Colorado.  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac.  Rep. 
918,  919. 


§  876-882          MECHANICS'    LIENS— SUPPLEMENT.  280 

§  876.     Same.     Verdict.     Setting  aside  verdict. 
Additional  matter  to  foot-note  27.23 

§  877.    New  trial. 

Additional  matter  to  foot-note  28.20 

si  878.     Nonsuit.-7     When  sustained  upon  appeal. 

§  879.     Same.     When  not  granted. 
Additional  matter  to  foot-note  30.28 

§  880.    Same.    Statute  of  limitations.20 
§  881.     Same.     Time  of  filing  claim.-'10 

£  882.     Same.     Excessive  claim.     Forfeiture. 
Additional  matter  to  foot-note  34.31 


Idaho.  Naylor  &  Norlin  v.  Lewlston  &  S.  E.  E.  Ry.  Co..  14  Idaho  722. 
95  Pac.  Rep.  827,  828,  96  Pac.  Rep.  573. 

25  California.  Compare  Seebach  v.  Kuhn,  9  Cal.  App.  485,  490,  99  Pac. 
Rep.  723. 

ze  New  Trial : 

California.  See  Dahlberg  v.  Girsch,  157  Cal.  324,  326,  107  Pac.  Rep. 
616;  Coghlan  v.  Quartararo  (Cal.  App.),  115  Pac.  Rep.  664. 

Idaho.  See  Valley  L.  &  Mfg.  Co.  v.  Nlckerson,  13  Idaho  682,  93  Pac. 
Rep.  24.  27. 

Montana.  See  Hamilton  v.  Monidah  Trust,  39  Mont.  269,  102  Pac. 
Rep.  335. 

Oregon.  On  appeal*  See  Edmunds  v.  Welling  (Oreg.) ,  110  Pac.  Rep. 
533. 

Washington.  See  Shaw  v.  Spencer,  57  Wash.  587,  107  Pac.  Rep.  383; 
Mortimer  v.  Dirks.  57  Wash.  402,  107  Pac.  Rep.  184,  186. 

Wyoming.  See  Qreenawalt  v.  Natrona  I.  Co.,  16  Wyo.  226,  92  Pac. 
Rep.  1008. 

Notice  of  Intention : 

Idaho.  See  Naylor  &  Norlin  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho 
789,  96  Pac.  Rep.  573,  95  Pac.  Rep.  827. 

Montana.  See  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108 
Pac.  Rep.  353. 

27  Nonault  I 

\\iisiilnnt4.ii.  See  Evans  v.  Oregon  &  W.  R.  Co.,  58  Wash.  429.  108 
Pac.  Rep.  1095. 

28  California.     See  Coghlan  v.  Quartararo  (Cal.  App.),  115  Pac.  Rep. 
664.  667. 

29  See  §  649,  this  Supplement,  ante. 

so  See  55  422  et  seq.,  this  Supplement,  ante. 
31  Nonsuit: 


281  TRIAL   AND    PRACTICE.  88  §33    §§4 

§  883.     Same.    Admission  in  answer.     Contract. 
Additional  matter  to  foot-note  35.32 

§  884.     Same.     Common  counts.33    Express  contract. 

California.     See  San  Pedro  L.  Co.  v.  Schroeter,  156  Cal.  158,  160,  103 
Pac.  Rep.  888. 

32  Nonsuit: 

California.     See    Hill    v.    Clark,    7    Cal.    App.    609,    611,    612,    95    Pac. 
Rep.    382. 

33  See  §  673,  this  Supplement,  ante. 


§§885,886          MECHANICS'    LIENS — SUPPLEMENT.  282 


CHAPTER  XLI. 

FINDINGS. 

!j  885.  Findings.  Scope  of  chapter.  The  object  of  plead- 
ings is  to  arrive  at  the  issue  or  issues  on  which  the  cause  of 
action  or  defense  thereof  depends.  The  object  of  findings 
is  to  determine  such  issue  or  issues.  Findings  should  be  so 
construed  as  to  support  the  judgment  when  it  can  be  done. 
If  apparently  inconsistent,  they  should  be  reconciled,  if  rea- 
sonably possible  to  do  so.  If  upon  an  immaterial  issue,  they 
should  be  disregarded.  If,  taking  them  as  a  whole,  they 
fairly  dispose  of  the  material  issues  raised  by  the  pleadings 
on  which  evidence  was  offered,  the  judgment  will  be  upheld.1 

Additional  matter  to  foot-note  I.2 

§  886.  Issues  to  be  found  upon.  A  finding  that  all  of  the 
allegations  of  the  complaint  are  true  is  sufficient,  as  such 
finding  negatives  the  denial  of  the  answer  as  to  the  allega- 
tion of  the  complaint;3  but  a  general  omnibus  finding,  "that 

1  California.     Needham  v.  Chandler,  8  Cal.  App.  124,  128,  96  Pac.  Rep. 
325. 

2  Presumption*  In  favor  of  finding;*  on  appeal:     See   §{976  and   980, 
this  Supplement,  post. 

California.  Re-trial:  Adoption  of  former  findings  after  appeal: 
See  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep.  760;  s.  c.. 
9  Cal.  App.  491,  99  Pac.  Rep.  856;  s.  c.,  sub  nom.  Burnett  v.  Glas,  154 
Cal.  249,  97  Pac.  Rep.  423. 

Evidence  of  acquiescence  in  delay  held  to  support  findings:  See 
Slrch  E.  &  T.  L.  v.  Garbutt,  13  Cal.  App.  435,  110  Pac.  Rep.  140. 

Idaho.  Amount  of  damage  for  malperformunce:  See  Steltz  v.  Ar- 
mory Co.,  15  Idaho  551,  99  Pac.  Rep.  98,  101. 

Washington.  One  cannot  attack  flndlngn  reqneMted  by  him:  Jensen 
v.  Sheard,  49  Wash.  593,  96  Pac.  Rep.  2. 

On  trial  de  novo  In  Appellate  Court,  findings  of  lower  court  given 
due  weight,  but  evidence  reviewed:  Pacific  L.  &  T.  Co.  v.  Dailey 
(Wash.),  Ill  Pac.  Rep.  869,  870. 

AH  to  breach  of  contract  for  grading  work:  See  Pinickneff  v.  John- 
son, 54  Wash.  156,  102  Pac.  Rep.  1047. 

A«  to  modification  of  contract:  See  Jones  v.  Nelson  (Wash.).  112 
Pac.  Rep.  88. 

3  California.     Needham  v.  Chandler,  8  Cal.  App.  124,  128,  96  Pac.  Rep. 
325. 


283  FINDINGS.  §§  886-888 

all  the  material  denials  and  averments  of  the  answer  to  the 
complaint  herein  are  true,  and  all  the  material  averments  of 
the  amended  complaint  in  intervention  are  true,"  is  insuf- 
ficient for  any  purpose.4  If  the  effect  of  an  affirmative  alle- 
gation with  regards  to  performance  of  the  contract  following 
and  in  connection  with  a  denial  is  but  to  emphasize  the  denial 
of  the  answer,  it  is  not  necessary  that  there  should  be  a  find- 
ing on  such  affirmative  allegation.5  If  an  issue  is  joined  as  to 
priority  of  liens,  the  issue  should  be  found  upon  by  the  court. 

Additional  matter  to  foot-note  3.6 

Additional  matter  to  foot-note  8.7 

Additional  matter  to  foot-note  9.8 

Additional  matter  to  foot-note  10. 9 

§  887.  Finding  to  cover  entire  issue.  It  seems  that  a 
mere  finding  as  to  the  incorrectness  of  the  description  in  a 
claim  of  lien  is  not  equivalent  to  a  finding  that  such  incorrect 
description  fails  to  properly  identify  the  property.10 

Additional  matter  to  foot-note  II.11 

§  888.  Same.  Defective  findings.  It  is  not  necessary  that 
there  should  be  a  correct  finding  with  reference  to  the 
amount  remaining  unpaid  in  the  hands  of  the  owner  from  the 
35-day  payment,  under  the  statutory  original  contract  as  it 

4  California.     Holt    Mfg.    Co.    v.    Collins,    154    Cal.    265,    273,    97    Pac. 
Rep.   516. 

5  California.     Needham  v.  Chandler,  8  Cal.  App.  124,  128,  96  Pac.  Rep. 
325. 

e  Calif ornia.  Abandonment:  See  Hoffman-Marks  Co.  v.  Spires,  154 
Cal.  Ill,  118,  97  Pac.  Rep.  152.  See  Western  L.  &  M.  Co.  v.  Merchants' 
A.  Co.,  13  Cal.  App.  4,  108  Pac.  Rep.  891,  894. 

Colorado.  But  see  Ross  M.  &  M.  Co.  v.  Sethman  (Colo.),  114  Pac. 
Rep.  287. 

7  Colorado.     See  Ross  M.  &  M.  Co.  v.  Sethman   (Colo.),   114  Pac.  Rep. 
287. 

8  Utah.     See  Midgley  v.  Campbell  B.  Co.   (Utah),  112  Pac.  Rep.  820. 

9  California.      See  Los  Angeles  P.   B.  Co.  v.  Higgins,  8  Cal.  App.  514. 
520,  97  Pac.  Rep.  414,  420. 

10  California.     Patten  &  Davies  L.  Co.  v.  Gibson,  9   Cal.   App.   23,  25. 
98  Pac.  Rep.  37,  38.      (Dictum.) 

11  California.     See  Coplew  v.  Durand,   153  Cal.   278,   281,  95  Pac.  Rep. 
38. 

Idaho.  See  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.  789,  796,  92  Pac.  Rep.  980. 


gg  888-890          MECHANICS'    LIENS— SUPPLEMENT.  284 

existed  in  California  before  the  amendment  of  1911,  where 
the  payment  was  in  excess  of  the  claim,  and  the  findings 
were  otherwise  supported  by  the  evidence.12 
Additional  matter  to  foot-note  16. 13 

§  889.  Ultimate  facts  to  be  found.  Where  the  notice  of 
completion  is  prematurely  filed  by  the  owner  before  actual 
completion  or  substantial  completion,  and  the  owner  and 
claimant  regard  the  work  as  not  completed,  a  finding  that 
after  completion  no  notice  of  completion  was  filed  will  be 
sustained.14 

Additional  matter  to  foot-note  17.15 

Additional  matter  to  foot-note  19.10 

Additional  matter  to  foot-note  20.17 

S  890.  Immaterial  issues.  Where  there  is  no  issue  raised 
that  the  description  of  the  property  in  the  claim  of  lien  is 
insufficient  for  identification,  there  need  be  no  findings  made 
thereon.18  In  determining  the  rights  of  claimants  under  a 
contractor  who  abandons  his  valid  contract  the  court  need 
not  find  the  reasonable  cost  of  completing  the  building,  as 
such  issue  is  not  material,  the  ultimate  fact  being  the  value 
of  the  work  done  by  the  contractor  measured  by  the  rule  of 
the  statute.19 

12  California.     Otis    E.    Co.    v.    Brainerd,    10    Cal.    App.    229.    233,    101 
Pac.  Rep.  691. 

13  California.     AM    to    deitcrlptlons     See    Patten    &    Da  vies    L.    Co.    v. 
Gibson,  9  Cal.  App.  23,  98  Pac.  Rep.  37,  38. 

14  California.     Otis  E.  Co.  v.  Brainerd,  10  Cal.  App.  229,  232.  101  Pac. 
Rep.  691. 

is  California.  C.  Scheerer  &  Co.  v.  Deming,  154  Cal.  138.  97  Pac. 
Rep.  155. 

Am  to  finding  upon  evidence  of  title  or  ownermhlpt  See  Cooley  v. 
Miller  &  Lux,  157  Cal.  510,  105  Pac.  Rep.  981,  986. 

Finding-  of  KIIIII  "due  and  owlnRV'  implying  that  it  was  unpaid:  See 
Treis  v.  Berlin  D.  W.  &  L.  Co.,  10  Cal.  App.  623,  105  Pac.  Rep.  275,  276. 

16  California.  '  An  to  material*  lined,  except  xninll  Item*:  See  Lucas 
v.  Oobbi,  10  Cal.  App.  648,  652,  103  Pac.  Rep.  157. 

IT  California.  See  Western  L.  &  M.  Co.  v.  Merchants'  A.  Co.,  13  Cal. 
App.  4.  108  Pac.  Rep.  891,  894. 

is  California.  Patten  &  Davies  L.  Co.  v.  Gibson,  9  Cal.  App.  23,  25, 
98  Pac.  Rep.  37.  38. 

10  California.  C.  Scheerer  &  Co.  v.  Deming,  154  Cal.  138,  97  Pac. 
Rep.  155. 


285  FINDINGS.  §§  890-895 

Additional  matter  to  foot-note  25. 20 
Additional  matter  to  foot-note  31. 21 

§  891.  Same.  Knowledge  of  owner.  Notice  of  non-re- 
sponsibility. Where  a  finding  as  to  the  knowledge  of  the 
owner  is  susceptible  of  a  construction  that  he  had  knowledge 
during  the  progress  of  the  work,  and  if  the  evidence  supports 
such  finding,  thus  construed,  a  judgment  requiring  such  find- 
ing to  support  it  will  be  sustained.22 

§  892.     Segregating  items  of  contract  price. 
Additional  matter  to  foot-note  34.23 

§  893.  Contradictory  findings.  A  finding  of  a  promise  to 
pay  under  one  count,  and  also  of  the  reasonable  value  under 
another  count,  are  not  so  inconsistent  as  to  warrant  a  re- 
versal.24 A  finding  that  the  contractor  did  not  file  the  stat- 
utory original  contract,  and  that  if  there  was  any  failure  to 
complete  the  contract  in  any  respect,  it  was  due  entirely  to 
the  failure  of  the  owner  to  furnish  necessary  materials,  is  un- 
certain and  contradictory.25 

§  894.    Findings  in  consolidated  action. 

Additional  matter  to  foot-note  38. 2G 

§  895.     Findings  of  fact  and  conclusions  of  law. 
Additional  matter  to  foot-note  39. -~ 

20  California.     Robison    v.    Mitchell    (Gal.    Sup.),    114    Pac.    Rep.    984, 
989. 

21  California.     Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  520, 
97  Pac.  Rep,  414,  420. 

22  California.     Pacific  L.  Co.  v.  Wilson,   6  Cal.  App.   561,   562,   92  Pac. 
Rep.  654. 

23  Idaho.     See    Nelson    Bennett    Co.    v.    Twin    Falls    L.    &    W.    Co.,    14 
Idaho  5,  93  Pac.  Rep.  789,  798,  92  Pac.  Rep.  980. 

24  California.     Barber  A.  P.  Co.  v.  Santa  Barbara  I.  Co.,  13  Cal.  App. 
597,  110  Pac.  Rep.  463. 

25  California.     Boyd  v.   Bargagliotti,   12   Cal.  App.   228,   238,   107   Pac. 
Rep.  150. 

\\asliiiinlon.  In  consolidated  action:  See  Ferdig  v.  Simpson,  47 
Wash.  475,  92  Pac.  Rep.  370. 

27  California.  See  Treis  v.  Berlin  D.  W.  &  L.  Co.,  10  Cal.  App.  623, 
105  Pac.  Rep.  275,  276. 

Utah.     See  Foulger  v.  McGrath,  34  Utah  86,  95  Pac.  Rep.   1004,  1007. 


81896-902        MECHANICS'  LIENS — SUPPLEMENT.  286 

§  896.    Same.    Void  contract. 
Additional  matter  to  foot-note  41. 28 

i  897.     Finding's  sufficient  to  support  judgment. 
Additional  matter  to  foot-note  42.20 

§  898.     Agency.30 

§  899.     Same.     Insufficient  finding. 

§  900.     Same.     Request  of  owner. 
Additional  matter  to  foot-note  48.31 

§  901.    Same.    Void  contract.32 

§  902.    When  findings  may  not  be  attacked.33 

28  California.     See  Western  L.  &  M.  Co.  v.  Merchants'  A.  Co.,  13  Cal. 
App.   4,  108  Pac.  Rep.  891,  894. 

The  Statutory  Original  Contract  was  abolished  by  amendment  of 
May  1,  1911,  to  S  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts.  1911,  pp.  1313 
et  seq.). 

See  8§  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

29  California.     See,    generally.    Barber    A.    P.    Co.    v.    Santa    Barbara 
I.  Co.,  13  Cal.  App.  597,   110  Pac.  Rep.  463;  Stimson  M.  Co.  v.  Hughes 
Mfg.  Co.,  5  Cal.  App.  559,  97  Pac.  Rep.  322,  323;  Lucas  v.  Gobbi,  10  Cal. 
App.    648,    653,    103    Pac.    Rep.    157;    Fairchild-Gilmore-Wilton    Co.    v. 
Southern  R.  Co.,  158  Cal.  264,  110  Pac.  Rep.  951,  953. 

so  See  "Agency,"  §$572  et  seq..  this  Supplement,  ante, 
si  California.     Owner  acting  tbroiiKh   agent t     See  Western   L.   &   M. 
Co.  v.  Merchants'  A.  Co.,  13  Cal.  App.  4,  108  Pac.  Rep.  891. 

32  California.     The    Statutory    Original    Contract    was    abolished    by 
amendment  of  May  1,  1911,  to  §  1183,  Code  Civ.  Proc.  (Stats.  &  Amdts. 
1911,  pp.  1313  et  seq.). 

See  H  258,  268,  274,  281,  288,  and  328,  this  Supplement,  ante. 

33  See  "Appeal,"  §§980  et  seq.,  this  Supplement,  post. 


287  DECREE.  o  903 


CHAPTER  XLII. 

DECREE. 

§  903.  General  nature  of  decree  foreclosing  liens.  Where 
neither  the  owner  nor  contractor  raises  any  objection  to  the 
disposition  of  the  balance  of  the  fund,  an  order  or  judgment 
that  the  balance  be  paid  to  claimants  who  have  not  estab- 
lished their  lien  is  too  favorable  to  them,  and  they  cannot  be 
heard  to  object  to  such  order  on  appeal  nor  to  attack  the 
judgment  giving  a  lien  to  those  who  have  established  the 
same.1  When  the  statutory  original  contract  is  void  and 
the  lien  is  direct,  the  court  may  properly  deny  the  owner's 
demand  for  an  accounting  and  apportionment  of  the  amount 
due  among  the  several  claimants.2 

Additional  matter  to  foot-note  I.3 

Additional  matter  to  foot  note  2.4 


1  California.     Stockton  L.  Co.  v.   Schuler,   155   Cal.   411,   414,  101  Pac. 
Rep.   307. 

2  California.     Coghlan  v.   Quartararo    (Cal.  App.),   115  Pac.  Rep.   664, 
666. 

3  Idaho.     Judgment     foreclosing    mechanics'    lien     is     not     a     money 
judgment   within   the   meaning   of   §  4,    810   Rev.   Stats,    of    1887,    corre- 
sponding to   §  942,  Code  Civ.  Proc.   of  California:     Naylor   &  Norlin  v. 
Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  722,  95  Pac.  Rep.  827,  828,  96  Pac. 
Rep.  573. 

Kansas.  Action  to  foreclose  cannot  be  summarily  dismissed  on  mo- 
tion of  person  not  party  to  the  action:  Deatherage  L.  Co.  v.  Miles 
(Kan.),  116  Pac.  Rep.  505. 

Washington.  Judgment  for  provisional  lien  against  the  property 
of  the  owner  for  a  certain  sum,  conditioned  upon  the  payment  of  that 
amount  into  the  registry  of  the  court  within  a  certain  time  after 
rendition  of  the  judgment:  See  Hughes  &  Co.  v.  Flint  (Wash.),  112 
Pac.  Rep.  633. 

Judgment  against  surety  in  action  to  foreclose  lien:  See  Kalb- 
Gilbert  L.  Co.  v.  Cram  (Wash.),  Ill  Pac.  Rep.  1050;  s.  c.,  57  Wash.  550. 
107  Pac.  Rep.  381. 

Judgment  quieting  title  protecting  lien  for  improvements:  See 
Palmer  v.  Abrahams,  55  Wash.  352,  104  Pac.  Rep.  648. 

4  Colorado.     Barnes  v.  Colorado  Springs  &  C.  C.  D.  Ry.  Co.,  42  Colo. 
461,  94  Pac.  Rep.  570,  573. 

Oklahoma.  Judgment  in  favor  of  subcontractor's  employee  can- 
not be  rendered,  if  the  court  does  not  acquire  jurisdiction  of  his 
person:  Albert!  v.  Moore,  20  Okl.  78,  92  Pac.  Rep.  542,  547. 


§§  903-907          MECHANICS'    LIENS — SUPPLEMENT.  288 

Additional  matter  to  foot-note  3.5 

§  904.     Effect  of  decree  on  third  persons. 
Additional  matter  to  foot-note  5.6 

§  905.  Consolidated  action.  Where  actions  of  sub-lien 
claimants  to  foreclose  liens  against  the  owner  and  the  original 
contract  are  properly  consolidated  under  the  statute  and  the 
liens  fail,  a  single  personal  judgment  against  the  original 
contractor  may  be  entered." 

§  906.    Kind  of  money  in  which  judgment  is  to  be  satisfied. 

§  907.  Interest.  The  fact  that  appellants  who  claimed 
under  a  deed  of  trust  were  not  parties  to  any  of  the  claim* 
sued  upon,  and  that  they  were  contracted  without  their 
knowledge,  does  not  affect  the  right  of  lien  holders  to  inter- 
est, where  the  appellants  claimed  under  a  person  who  in- 
curred the  liability  and  under  an  instrument  executed  after 
the  liability  had  become  a  lien  against  the  property,  and 
consequently  have  only  the  rights  in  the  property  which  the 
owner  had  when  the  deed  of  trust  was  executed.8 

Additional  matter  to  foot-note  9.9 


5  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co., 
7  Cal.  App.  460,  463,  94  Pac.  Rep.  775. 

«  See  S  907,  this  Supplement,  post. 

California.  See  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App. 
266,  273,  96  Pac.  Rep.  788. 

Am  to  effect  of  decree  foreclosing  street  assessment  Hen:  See  Los 
Angeles  County  v.  Wlnans,  13  Cal.  App.  234,  109  Pac.  Rep.  640,  650. 

Direct  and  collateral  attack  upon  decree  of  foreclosure  and  pre- 
sumptions regarding  jurisdiction:  See  Western  L.  &  M.  Co.  v.  Mer- 
chants' A.  Co..  13  Cal.  App.  4,  108  Pac.  Rep.  891.  See  Lemon  v.  Hub- 
bard,  10  Cal.  App.  471,  475.  102  Pac.  Rep.  554. 

i  i.-iii.  As  to  atibsequent  creditor*:  See  Park  City  M.  Co.  v.  Corn- 
stock  S.  M.  Co.,  Utah,  103  Pac.  Rep.  254,  258. 

Washington.  Compare  Kalb-Gllbert  L.  Co.  v.  Cram  (Wash.),  Ill 
Pac.  Rep.  1050;  s.  c.,  57  Wash.  550,  107  Pac.  Rep.  381. 

7  California.  Nordstrom  v.  Corona  City  W.  Co.,  155  Cal.  206,  210, 
100  Pac.  Rep.  242. 

s  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
273,  96  Pac.  Rep.  788. 

9  California.  Burnett  v.  Glas.  154  Cal.  249,  259,  260.  97  Pac.  Rep. 
423;  s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.  856. 


289  DECREE.  §§  907-915 

Additional  matter  to  foot-note  10. 10 

§  908.     Same.     Contractor. 
Additional  matter  to  foot-note  13. n 

§  909.     Same.     Unliquidated  demands. 
Additional  matter  to  foot-note  14. 12 

§910.     Same.     Interest     of     subcontractor's     claimants, 
charge  against  subcontractor.13 

§  911.     Same.     Valid    contract.    Payment    of   fund   into 
court  by  owner.14 

§  912.     Default.    Modification  of  judgment.15 

§  913.    Default  judgment  against  owner.15 

§  914.     Personal  judgment.    When  not  required.16 

§  915.     Same.    When  obtained. 

Additional  matter  to  foot-note  26. 17 

Colorado.  See  Idaho  C.  C.  &  M.  Co.  v.  Colorado  I.  W.  Co.  (Colo.), 
Ill  Pac.  Rep.  535,  555. 

Washington.  Interest  properly  allowable  from  the  date  when  the 
lien  notice  is  filed:  Cornelius  v.  Washington  S.  L.,  52  Wash.  272, 
100  Pac.  Rep.  727,  729. 

10  California.     Burnett   v.   Glas,    154   Cal.    249,   259,    260,    97    Pac.    Rep. 
423;  s.  c.,  sub  nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac. 
Rep.   856. 

11  Washington.     See  Jones  v.  Nelson   (Wash.),  112  Pac.  Rep.  88. 

12  California.     Coghlan    v.    Quartararo     (Cal.    App.),    115    Pac.    Rep. 
664,  667;  Burnett  v.  Glas,  154  Cal.  249,  260,  97  Pac.  Rep.  423;  s.  c.,  sub 
nom.  Barrett-Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99  Pac.  Rep.  856. 

is  See    "Subcontractor,"    §§  66    et    seq.,    this    Supplement,    post. 

14  See  "Deposit,"  §  871,  this  Supplement,  ante. 

is  See    §  657,    this   Supplement,  ante. 

16  See   §§662  et  seq.,  this  Supplement,  ante. 

IT  California.  Nordstrom  v.  Corona  City  W.  Co.,  155  Cal.  206,  100 
Pac.  Rep.  242. 

Colorado.  See  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac. 
Rep.  918,  921  (owner  entitled  to  judgment  against  contractor  for 
excess  payment  of  liens  above  amount  due  contractor). 

Idaho.  Valley  L.  &.  Mfg.  Co.  v.  Nickerson,  13  Idaho  682,  93  Pac.  Rep. 
24,  27. 

Oklahoma.     Alberti  v.  Moore,   20  Okl.   78,  93  Pac.  Rep.   543,  546. 
Bloom's  Sup. — 19 


|§  915-920          MECHANICS'    LIENS— SUPPLEMENT.  •_>!><) 

Additional  matter  to  foot-note  27.18 

§  916.     Same.     Purchaser  of  property  assuming  debt. 

§  917.    Same.     Notice  to  owner  to  withhold  payments. 
Additional  matter  to  foot-note  32. 19 

§  918.     Same.     Subclaimant  against  contractor.     Default. 
Additional  matter  to  foot-note  33.20 

§  919.     Same.     When  not  given. 
Additional  matter  to  foot-note  34.21 
Additional  matter  to  foot-note  35.22 
Additional  matter  to  foot-note  36.23 

£  920.     Same.     Death  of  owner.     Recovery  against  estate. 
Additional  matter  to  foot-note  37.-' 


is  WanlilnKton.  Tsutakawa  v.  Kumamoto,  53  Wash.  231,  102  Pac. 
Rep.  766,  101  Pac.  Rep.  869. 

10  California.  See  Hubbard  v.  Lee,  10  Cal.  App.  477,  478,  102  Pac. 
Rep.  528;  s.  c.,  6  Cal.  App.  602,  92  Pac.  Rep.  744. 

20  \\  .-i-.il i M- ( ..ii.     No    recovery    agalnnt    contractor    on     general    ac- 
counts without   issues  framed:     Hughes  &  Co.  v.   Flint    (Wash.),   112 
Pac.  Rep.   633,   635. 

21  Arizona.     Harper   v.    Independence   D.   Co.    (Ariz.),    108   Pac.    Rep. 
701. 

California.  Merced  L.  Co.  v.  Bruschi,  152  Cal.  372,  375,  92  Pac.  Rep. 
844.  See  Goldtree  v.  City  of  San  Diego,  8  Cal.  App.  505,  506,  97  Pac. 
Rep.  216;  s.  c.,  8  Cal.  App.  512,  97  Pac.  Rep.  218. 

KniisiiM.  See  Robert  Garrett  L.  Co.  v.  Loftus,  82  Kan.  556.  T09  Pac. 
Rep.  179.  180,  181. 

Oklahoma.     See  Albert!  v.  Moore,  20  Okl.  78,  93  Pac.  Rep.  543,  547. 

l' i nh.  Volker-Scowcroft  L.  Co.  v.  Vance  (Utah),  103  Pac.  Rep.  970; 
s.  c.,  32  Utah  74,  88  Pac.  Rep.  896. 

\YiiMliinKton.     Shaw  v.  Spencer,  57  Wash.  587,  107  Pac.  Rep.  383. 

22  California.     Merced   L.   Co.   v.    Bruschi,    152   Cal.    372,    375,   92    Pac. 
Rep.  844. 

23  Oklahoma.     Albert!  v.  Moore,   20  Okl.  78,  93  Pac.   Rep.   543,   546. 

24  California.     See  in  re  Hincheon's  Estate   (Cal.  Sup.),  116  Pac.  Rep. 
47. 

Oregon.     Brown  v.  Truax   (Oreg.),   115  Pac.  Rep.  597. 
South    Dakota.     See    Fish    v.    De   Laray,    8    So.    Dak.    320,   66    N.    W. 
Rep.  465. 

Waiihlngrton.     See  Casey  v.  Ault,  4  Wash.  167,  29  Pac.  Rep.  1048. 


291  DECREE.  §§  921-926 

§  921.  Same.  Jurisdiction  of  superior  court  to  render 
personal  judgment  in  suit  to  foreclose  lien. 

Additional  matter  to  foot-no.te  38. 25 

§  922.    Deficiency  judgment. 
Additional  matter  to  foot-note  39. 26 
Additional  matter  to  foot-note  40.27 

§  923.     Same.     Notice  to  owner  to  withhold  payments.28 
§  924.     Same.    Judgment  for  gross  amount. 
§  925.     Same.    Form  of  judgment. 

§  926.  Prior  mortgage.  Decree  of  sale.  The  court  fore- 
closing mechanics'  liens  may  decree  the  payment  of  a 
mortgage  debt  if  it  is  not  due,  where  some  of  the  me- 
chanics' lien  are  prior  thereto  and  some  subsequent  thereto; 
but  if  all  of  the  liens  are  prior  to  the  mortgage  or  all  are 
subsequent  thereto,  or  if  there  are  some  prior  and  some 
subsequent  and  all  of  either  class  are  paid  off,  it  is  error  for 
the  court  to  enter  a  decree  having  the  effect  of  maturing  the 
unmatured  mortgage  debt,  and  no  provision  should  be  made 
in  the  decree  for  the  payment  of  the  mortgage ;  as,  in  the  case 
of  prior  mechanics'  liens,  the  mortgagee  would  have  to  re- 
deem from  the  lien  sale  to  preserve  his  claim,  and  in  the  case 
of  a  prior  mortgage,  the  property  would  be  sold  subject 
thereto.29 


25  Washington.     See  Pacific  I.   &  S.  Works  v.   Goerig,  55  Wash.   149, 
104  Pac.  Rep.  151. 

26  California.     See  Danaldson  v.  Orchard  C.   O.   Co.,    6   Cal.   App.   641, 
92   Pac.   Rep.   1046. 

27  Idaho.     See  Naylor   &  Norlin   v.   Lewiston    &   S.   E.   E.   Ry.   Co.,    14 
Idaho  722,  25  Pac.  Rep.  827,  96  Pac.  Rep.  573. 

28  See  §§  547  et  seq.,  this  Supplement,  ante. 

29  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep.  760,  766;  s.  c., 
9  Cal.  App.  491,  99  Pac.  Rep.   856;  s.  c.,  sub  nom.  Burnett  v.  Glas,   154 
Cal.   249,   97  Pac.   Rep.   423.     See   this   case   in   its  various   stages,   with 
regard  to  this  question. 


§§  927-934          MECHANICS'    LIENS — SUPPLEMENT.  292 

§  927.     Interests  in  land.    When  can  be  ordered  sold. 
Additional  matter  to  foot-note  50.30 

§  928.    Recitals  in  decree.    Foreclosure  of  interest.31 
§  929.     Same.     Ownership.    Knowledge.32 
§  930.     Extent  of  lien.     Statutory  provision.33 

§  931.  Same.  Necessity  of  designating  property  to  be 
sold. 

Additional  matter  to  foot-note  55.34 

§  932.     Same.     Effect  of  failure  to  define  extent  of  land. 
Additional  matter  to  foot-note  56.35 

§  933.     Same.     Order  directing  sale  of  entire  building. 
Additional  matter  to  foot-note  57.36 

§  934.     Same.     Land  necessary  for  convenient  use  and  oc- 
cupation. 
Additional  matter  to  foot-note  58.37 

so  California.  See  Danaldson  v.  Orchard  C.  O.  Co.,  6  Cat.  App.  641, 
92  Pac.  Rep.  1046. 

Utah.  Sale  carrying  with  It  certain  eanementMt  Park  City  M.  Co. 
v.  Comstock  S.  M.  Co.  (Utah),  103  Pac.  Rep.  254,  261. 

\\  :i-liinuum.  Am  to  leasehold  IntercMtMi  See  Cornelius  v.  Wash- 
ington S.  L.,  52  Wash.  272,  100  Pac.  Rep.  727,  729. 

si  See  "Extent  of  Hen,"  f{  459  et  seq.,  this  Supplement,  ante. 

32  See  J§  469  et  seq.,  this  Supplement,  ante. 

33  See    11195,   Code   Civ.   Proc.,   as   amended    May    1,    1911    (Stats.    & 
Am. its.  1911,  pp.  1313  et  seq.). 

34  California.     See  Patten  &  Davles  L.  Co.  v.  Gibson,  9  Cal.  App.  23, 
25,  98  Pac.  Rep.  37,  38.     Compare  Chapman  v.  Zobelein,  152  Cal.  216, 
92  Pac.  Rep.  188. 

Utah.  A*  to  mining  claim t  See  Park  City  M.  Co.  v.  Comstock 
S.  M.  Co.  (Utah),  103  Pac.  Rep.  254,  261. 

35  Washington.     See  Cornelius   v.   Washington   S.   L.,    52   Wash.   272, 
100    Pac.    Rep.    727,    729. 

38  Utah.  See  Park  City  M.  Co.  v.  Comstock  S.  M.  Co.  (Utah),  103 
Pac.  Rep.  254,  259. 

37  New  Mexico.  AM  to  mining  claim  t  See  Steams-Roger  Mfg.  Co. 
v.  Aztec  O.  M.  &  M.  Co.,  14  N.  M.  300,  93  Pac.  Rep.  706,  710. 

Utah.  An  to  mining  claim i  See  Park  City  M.  Co.  v.  Comstock  S.  M. 
Co.  (Utah),  103  Pac.  Rep.  254,  259. 


293  COSTS    AND    ATTORNEYS'    FEES.  SS  935.939 


CHAPTER  XLIII. 

COSTS  AND  ATTORNEYS'  FEES. 

§935.     Costs  and  attorneys'  fees.     Statutory  provision. 
Additional  matter  to  foot-note  I.1 

§  936.  Costs.  Preparing,  filing,  and  recording  claim  of 
lien. 

Additional  matter  to  foot-note  7.2 

§  937.  Same.  Recovery  by  owner.  Where  no  claim  is 
made  in  the  complaint  in  an  action  upon  the  contractor's 
bond  to  recover  attorneys'  fees  necessarily  paid  by  the 
owner,  such  costs  cannot  be  covered.3 

§  938.  Same.  Recovery  of  costs  against  owner.  Pro- 
longing litigation. 

Additional  matter  to  foot-note  10.4 

§  939.  Same.  Owner  may  set  off  costs  and  interests 
against  contractor,  when.  Allowance  of  attorneys'  fees  on 

1  California.     Costs  on  appeal;  not  allowed  against  certain  respond- 
ents where  judgment  is  modified  on  appeal:     See  Burnett  v.  Glas,  154 
Cal.    249,    261,   97   Pac.   Rep.    423;    s.   c.,    sub    nom.   Barrett-Hicks   Co.    v. 
Glas,  9  Cal.  App.  491,  99  Pac.  Rep.  856. 

Apportionment  of  costs  between  appellant  and  respondents:  See 
Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  524,  97  Pac.  Rep. 
414,  420. 

Idaho.  Mileage  and  per  diem  allowed  for  attendance  of  subcon- 
tractors, not  parties,  but  interested:  See  Nelson  Bennett  Co.  v.  Twin 
Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  799,  92  Pac.  Rep.  980. 

Oregon.  Costs  on  appeal:  See  Litherland  v.  S.  Morton' Cohn  R.  E. 
&  I.  Co.,  54  Oreg.  1,  102  Pac.  Rep.  303,  100  Pac.  Rep.  1. 

Washington.  As  to  costs:  See  Jensen  v.  Sheard,  49  Wash.  593, 
96  Pac.  Rep.  2. 

As  to  Attorney's  fees:  See  Rieflin  v.  Grafton  (Wash.),  115  Pac. 
Rep.  851,  853. 

2  Montana.     Neuman  v.  Grant,  36  Mont.  77,  92  Pac.  Rep.  43. 

3  California.     Klokke  v.  Raphael,  8  Cal.  App.  1,  6,  96  Pac.  Rep.  392. 

4  California.     See  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514, 
523,   97  Pac.  Rep.  414,  420. 


§§  939    940         MECHANICS1    LIENS — SUPPLEMENT.  294 

foreclosure  of  mechanics'  liens  where  statute  has  been  held 
unconstitutional  is  error,  and  will  be  stricken  from  the  judg- 
ment.5 And  a  direction  that  the  same  be  paid  from  the  fund 
deposited  in  court  is  void,  and  the  owner  is  entitled  to  have 
the  judgment  allowing  the  same  modified.6 
Additional  matter  to  foot-note  II.7 

§940.    Attorneys' fees.     Unconstitutionality  of  provision. 
Additional  matter  to  foot-note  16. 8 
Additional  matter  to  foot-note  18.9 


5  California.  Los  Angeles  P.  B.  Co.  v.  Los  Angeles  P.  B.  &  D.  Co.. 
7  Cal.  App.  460,  464,  94  Pac.  Rep.  775. 

a  California.     Los  Angeles  P.  B.  Co.  v.  iliggins,  8  Cal.  App.  514,  520. 

7  California.     Recovery    by    owner    against    contractor's    surety    for 
attorneys'  fees  where  fund  was  exhausted  by  payment  to  Hen  claim- 
ants:    Klokke  v.  Raphael,  8  Cal.  App.   1,   5,   96   Pac.  Rep.   392,  distin- 
guishing Burnett  v.  Glas,  97  Pac.  Rep.  423  (154  Cal.  249).     See  Sheard 
v.  United  States  F.  &  G.  Co.,  58  Wash.  29,  107  Pac.  Rep.  1024,  1027. 

8  California.     Burnett   v.    Glas,    154   Cal.    249,    260,   97   Pac.    Rep.    423; 
s.   c.f   sub   nom.   Barrett-Hicks   Co.   v.   Glas,    9    Cal.    App.    491,    99   Pac. 
Rep.  856:  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.   266,  274. 
96   Pac.   Rep.    788.     See   Holt  Mfg.   Co.   v.   Collins,   154  Cal.   265,   268,   97 
Pac.  Rep.  516   (threshing  machine),  and  Engebretson  v.  Gay,  158  Cal. 
30,  109  Pac.  Rep.  880;  s.  c.,  158  Cal.  27,  109  Pac.  Rep.  879;  s.  c.,  sub    nom. 
Gay  v.  Engebretson,  158  Cal.  21,  109  Pac.  Rep.  877. 

Idaho.  Provision  for  attorneys'  fee  not  unconstitutional  because 
not  providing  allowance  for  opposite  party:  Nelson  Bennett  Co.  v. 
Twin  Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  799,  92  Pac. 
Rep.  980. 

New  Mexico.  Constitutionality  of  provision  for  attorneys'  fees 
reaffirmed:  Gray  v.  New  Mexico  P.  S.  Co.  (N.  M.),  110  Pac.  Rep. 
«03,  605. 

Oklahoma.  Provision  for  the  allowance  of  attorneys'  fees  uncon- 
stitutional as  violating  xiv  Amendment  of  the  Constitution  of  the 
United  States,  as  not  giving  the  defendant  the  equal  protection  of  the 
laws:  Chicago  R.  I.  &  T.  Ry.  Co.  v.  Mashore,  21  Okl.  275,  96  Pac.  Rep. 
630,  633. 

»  California.  Farnham  v.  California  S.  D.  &  T.  Co.,  8  Cal.  App.  266, 
274,  96  Pac.  Rep.  788;  Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App. 
514,  522,  523,  97  Pac.  Rep.  414,  420;  Los  Angeles  P.  B.  Co.  v.  Los  An- 
geles P.  B.  &  D.  Co.,  7  Cal.  App.  460,  464.  94  Pac.  Rep.  775;  Barrett- 
Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  861;  s.  c.,  9  Cal.  App.  491,  99  Pac. 
Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom.  Burnett  v.  Glas,  154  Cal. 
249,  97  Pac.  Rep.  423;  H.  Raphael  Co.  v.  Grote,  154  Cal.  137,  138.  97  Pac. 
Rep.  155;  Pacific  L.  Co.  v.  Wilson,  6  Cal.  App.  561,  563.  92  Pac.  Rep. 
654;  Danaldson  v.  Orchard  C.  O.  Co.,  6  Cal.  App.  641,  645,  92  Pac.  Rep. 
1046;  Hill  v.  Clark,  7  Cal.  App.  609,  613,  95  Pac.  Rep.  382;  Hartwell  v. 
Ganahl  L.  Co.,  8  Cal.  App.  733,  737,  97  Pac.  Rep.  901. 


295  COSTS    AND    ATTORNEYS'    FEES.  SS  941.943 

§  941.     Same.    Attorneys'   fees   not   allowed,   except   on 
foreclosure  of  liens  on  property. 

Additional  matter  to  foot-note  20. 10 

§942.     Same.     Nature   of   attorneys'   fees   allowed,   and 
their  relation  to  costs. 

Additional  matter  to  foot-note  22. n 
Additional  matter  to  foot-note  23. 12 
Additional  matter  to  foot-note  24.13 

943.  Same.  Measure  of  attorneys'  fees.  Elements  for 
determination.  Magnitude  of  the  case,  peculiar  character  of 
the  contract  under  which  the  plaintiff  was  operating,  nature 
of  the  work  and  the  obstacles  with  which  he  met  in  attempt- 
ing to  recover  under  the  contract,  and  the  obstinacy  with 
which  the  case  was  contested,  are  elements  to  be  considered 
by  the  court  in  determining  what  are  reasonable  attorneys' 
fees,  when  they  are  allowable.14 

Additional  matter  to  foot-note  25.15 


10  Idaho.     Attorneys'  fees:     See,  generally,  Naylor  &  Norlin  v.  Lew- 
iston  &  S.   E.  E.  Ry.  Co.,   14   Idaho   722,   95  Pac.   Rep.   827,   828,  96   Pac. 
Rep.  573. 

11  Idaho.     Shaw  v.  Johnston,  17  Idaho  676,  107  Pac.  Rep.  399. 

12  Washington.      Attorneys'    fees    allowed    In    judgment    and    subse- 
quently taxed   as   costs;    no    error   where    amount   taxed   as    costs    re- 
mitted:    Ferdig  v.  Simpson,  47  Wash.  475,  92  Pac.  Rep.  370. 

is  Idaho.     Shaw  v.  Johnston,   17  Idaho  676,  107  Pac.  Rep.   399. 

14  Idaho.  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5, 
93  Pac.  Rep.  789,  799,  92  Pac.  Rep.  980. 

is  California.  Under  heading  "reasonable  attorneys'  fees,"  strike 
out  in  citation  of  Castagnetto  v.  Coppertown  M.  &  S.  Co.,  146  Cal. 
329,  334,  80  Pac.  Rep.  74,  the  word  "cents"  after  "seventy-five,"  and 
insert  "dollars." 

Attorneys'  fees: 

Idaho.  Amount  recovered,  $3124.70;  attorneys'  fees,  $250:  Naylor 
&  Norlin  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  722,  95  Pac.  Rep. 
827,  96  Pac.  Rep.  573.  Amount  recovered,  $46.50;  attorneys'  fees,  $50: 
Shaw  v.  Johnston,  17  Idaho  676,  107  Pac.  Rep.  399.  Amount  recovered, 
$162,211.26;  attorneys'  fees,  $10,000  (held  reasonable):  Nelson  Ben- 
nett Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  799, 
92  Pac.  Rep.  980. 

Montana.  See  Mylntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87, 
108  Pac.  Rep.  353,  355. 

New  Mexico.  Amount  recovered,  $3,251.36;  attorneys'  fees,  $250: 
Baldridge  V.  Morgan  (N.  M.),  106  Pac.  Rep.  342.  See  Steams-Roger 
Mfg.  Co.  v.  Aztec  G.  M.  &  M.  Co.,  14  N.  M.  300,  93  Pac.  Rep.  906,  913. 


§§  943-946          MECHANICS'    LIENS— SUPPLEMENT.  296 

Additional  matter  to  foot-note  27. 10 
Additional  matter  to  foot-note  29. 17 

§  944.    Same.    Relation  of  legal  services  to  action. 
Additional  matter  to  foot-note  30.18 

§  945.    Same.    Agreement  as  to  fees. 
Additional  matter  to  foot-note  34. 19 

£  946.  Same.  Lower  court  fixing  attorneys'  fees  in  su- 
preme court.20 

Oklahoma.  Action  for  recovery  of  attorneys'  fees,  $300,  In  a  num- 
ber of  mechanics'  lien  suits:  See  Mellon  v.  Fulton,  22  Okl.  636,  98  Pac. 
Rep.  911.  914. 

Oregon.  Amount  recovered,  $2,579.70;  attorneys'  fees,  $250  (upon 
uncontradicted  proof  of  reasonable  allowance — increased  from  $200, 
upon  appeal):  Mclnnis  v.  Buchanan,  53  Oreg.  229,  99  Pac.  Rep.  929, 
932. 

Washington.  Amount  recovered.  $129.58;  attorneys'  fees,  $25:  Popl- 
ella  v.  Zolawenskl,  51  Wash.  39,  97  Pac.  Rep.  972.  Amount  recovered, 
$655.20;  attorneys'  fees,  $100:  Helmer  v.  Title  G.  &  S.  Co.,  50  Wash. 
411,  97  Pac.  Rep.  451.  Amount  recovered,  $31.75;  attorneys'  fees,  $25: 
Olson  v.  Goodsell,  56  Wash.  251,  105  Pac.  Rep.  463.  Amount  recovered, 
$740;  attorney's  fees,  $100:  Williams  v.  Lewis  N.  Rosenbaum  Co., 
57  Wash.  94,  106  Pac.  Rep.  493.  Amount  recovered,  $1,420.86;  attor- 
neys' fees,  $200:  Cornelius  v.  Washington  S.  L.,  52  Wash.  272,  100  Pac. 
Rep.  727,  728.  Amount  of  total  liens,  $5,714.35:  attorneys'  fees, 
$1,000:  Sheard  v.  United  States  F.  &  G.  Co.,  58  Wash.  29,  107  Pac. 
Rep.  1024,  1026  (appeals).  Amount  recovered,  $340.37;  attorneys'  fees, 
$150  (stipulation  that  court  fix  fees):  Housekeeper  v.  Livingstone, 
48  Wash.  209,  93  Pac.  Rep.  217,  218. 

See  {  945,  this  Supplement,  post. 

ie  Idaho.  The  fact  that  the  claimant  recovers  less  than  one  hun- 
dred dollars  in  the  lower  court  is  immaterial,  so  far  as  attorneys'  fees 
are  concerned,  as  attorneys'  fees  are  recoverable  even  if  the  amount  of 
the  Judgment  is  less  than  one  hundred  dollars;  and  the  attorneys'  fees 
are  a  part  of  the  recovery  and  a  lien  upon  the  property:  Shaw  v. 
Johnston,  17  Idaho  676,  .107  Pac.  Rep.  399. 

IT  Oregon.  Where  the  claimant  proves  by  uncontradicted  testi- 
mony that  a  certain  amount  is  a  reasonable  allowance  for  attorneys' 
fees  on  foreclosure  of  the  lien,  he  may  recover  the  amount  so  proved: 
Mclnnis  v.  Buchanan,  53  Oreg.  229,  99  Pac.  Rep.  929,  932. 

is  Montana.  Neuman  v.  Grant,  36  Mont.  77,  92  Pac.  Rep.  43  (also 
for  abstract  of  title). 

10  Washington.  Where  court  fixes  attorneys'  fees,  without  evidence, 
according  to  stipulation,  appellate  court  can  not  say  that  there  was 
an  abuse' of  discretion,  In  the  absence  of  any  evidence  upon  the  sub- 
ject: Housekeeper  v.  Livingstone,  48  Wash.  217,  218. 

20  See  |991,  this  Supplement,  post. 


297  COSTS   AND    ATTORNEYS'    FEES.  X  947 

§  947.     Same.    When  owner  not  liable  for  attorneys'  fees. 
Additional  matter  to  foot-note  37. 21 

21  New  Mexico.     But  see  Baldridge  v.  Morgan   (N.  M.),  106  Pac.  Rep. 
342,    344. 


§§948-950          MECHANICS'    LIENS— SUPPLEMENT.  298 


CHAPTER  XLIV. 
SALE  AND  REDEMPTION. 

§  948.     Sale.     In  general. 
Additional  matter  to  foot-note  I.1 

£  949.  Same.  Manner  of  executing  judgment.  Execu- 
tion as  to  personal  judgment  against  the  original  contractor 
may  be  levied  on  all  debts  owing  from  the  owner  to  the 
original  contractor;  and  where  the  original  contractor  ob- 
tains judgment  against  the  owner,  such  judgment  may  be 
levied  upon  by  subclaimants  who  fail  to  establish  their  liens 
and  obtain  only  personal  judgments  against  the  original 
contractor.2 

Additional  matter  to  foot-note  4.3 

§  950.     Same.     ' '  Writ ' '  not  an  ' '  execution. ' ' 
Additional  matter  to  foot-note  7.4 


1  California.      \-    to    sale    on    foreclosure    of    mortgage — void    sale — 
sale  en  masse:     See  Bechtel  v.  Wier,  152  Cal.  443,  93  Pac.  Rep.  75. 

Defective  certificate  of  «nle,  on  foreclosure  of  mortgage:  Driscoll 
v.  Hershey.  7  Cal.  App.  738,  95  Pac.  Rep.  1040. 

\<-\i  Mexico.  I ii junction  agalnnt  nalet  See  Robertson  v.  Mine  & 
S.  S.  Co.  (N.  M.),  110  Pac.  Rep.  1037. 

Oklahoma.     See  Albert!  v.  Moore,   20  Okl.   78,  93  Pac.   Rep.   543.   547. 

Oregon.  See  Washburn  v.  Intermountain  M.  Co.  (Oreg.),  109  Pac. 
Rep.  382,  386. 

Utah.  Description  of  land  In  order  of  aalet  See  Park  City  M.  Co. 
v.  Comstock  S.  M.  Co.  (Utah),  103  Pac.  254,  261. 

2  California.      Nordstrom    v.    Corona    City    W.    Co.,    155    Cal.    206,    100 
Pac.    Rep.    242. 

3  Idaho.     iMMiinnoe    of  execution   under   section    4475,    Rev.    Codes,   in 
case  of  death  of  the  judgment  debtor,  applied  in  action  to  foreclose 
defendant's  lien:     Rose  v.  Dunbar  (Idaho),  115  Pac.  Rep.  920. 

Idaho.  Deficiency  judgment;  execution  and  return  of  sale:  See 
Naylor  &  Norlin  v.  Lewiston  &  S.  E.  E.  Ry.  Co.,  14  Idaho  722,  95  Pac. 
Rep.  827,  96  Pac.  Rep.  573. 

4  California.     Proceeding*  •npplenientary  to  execution   on   behalf   of 
sublien  claimants  against  lienor  for  indebtedness  to  the  original  con- 
tractor:     See   Nordstrom    v.    Corona    City   W.    Co.,    155    Cal.    206,    209, 
100  Pac.  Rep.  242. 


299  SALE    AND    REDEMPTION.  82  951-955 

§  951.     Same.    Time  of  sale. 
Additional  matter  to  foot-note  9.3 

§  952.  Same.  Application  of  proceeds  to  junior  execu- 
tions. 

Additional  matter  to  foot-note  II.6 
Additional  matter  to  foot-note  12." 

§  953.     Same.     Sale  of  leasehold  interest. 
Additional  matter  to  foot-note  14.8 

§  954.     Right  of  redemption. 

Additional  matter  to  foot-note  16.° 

§  955.  Same.  Redemption  by  subsequent  mortgagee  not 
made  a  party. 

Additional  matter  to  foot-note  17.10 

5  Colorado.     See,    generally,   La   Fitte    v.    Salisbury,    43    Colo.    348,    95 
Pac.  Rep.  1065. 

Idaho.  As  to  return:  See  Naylor  &  Norlin  v.  Lewiston  &  S.  E.  E. 
Ry.  Co.,  14  Idaho  722,  95  Pac.  Rep.  827,  96  Pac.  Rep.  573. 

6  California.     Compare   Barrett-Hicks  Co.   v.   Glas,   99  Pac.   Rep.   857, 
861;  s.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub 
nom.  Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

7  Washington.     Purchaser    at    foreclosure    of    mechanic's    lien    takes 
property    cum    onere:      Cornelius    v.    Washington    S.    L.,    52    Wash.    272, 
100  Pac.  Rep.  727,  729. 

s  Idaho.  Sale  of  rights  of  construction  company  of  canal  to  re- 
claim land  under  Carey  Act:  See  Nelson  Bennett  Co.  v.  Twin  Falls 
L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  792,  92  Pac.  Rep.  980. 

Possessory  title  to  mining  claim:  Nelson  Bennett  Co.  v.  Twin  Falls 
L.  &  W.  Co.,  supra. 

Montana.  Sale  of  structure  on  mine,  after  sale  of  undivided  inter- 
ests in  mining  claim  and  insufficient  proceeds:  See  Mclntyre  v.  Mon- 
tana G.  M.  M.  Co.,  41  Mont.  87,  108  Pac.  Rep.  353,  357. 

Oklahoma.  Sale  of  interest  of  lessee  of  school  lauds:  See  Jarrell 
v.  Block  19  Okl.  467,  92  Pac.  Rep.  167. 

o  California.  Redemption  from  sale  on  foreclosure  of  mortgage: 
See  Bunting  v.  Haskell,  152  Cal.  426,  93  Pac.  Rep.  110. 

Montana.  Right  to  redeem  where  mortgagor  has  conveyed  the 
mortgagee:  See  Gassert  v.  Strong,  38  Mont.  18,  98  Pac.  Rep.  497,  503. 

10  Colorado.  Action  by  minority  stockholders  to  enjoin  sale  under 
execution  when  officers  refuse  to  perform  duty  to  redeem:  See 
Paxton  v.  Heron,  41  Colo.  147,  92  Pac.  Rep.  15. 


$§  956,  957         MECHANICS'    LIENS— SUPPLEMENT.  3QQ 


'        CHAPTER  XLV. 

APPEAL. 

§  956.  Appeal.  In  general.  Statutory  provisions.  An 
action  to  foreclose  a  mechanic's  lien,  being  a  suit  in  equity, 
under  §  4,  of  Article  VI  of  the  constitution  of  California,  must 
be  appealed  directly  to  the  Supreme  Court;  and  where  the 
owner  deposits  the  balance  due  into  the  lower  court  to  be 
distributed  to  the  lien  holders  according  to  the  judgment  of 
the  court,  it  is  a  proceeding  calling  for  equitable  relief,  and 
the  case  will  be  transferred  from  the  Court  of  Appeal  to 
the  Supreme  Court  for  hearing.1 

Additional  matter  to  foot-note  I.2 

§  957.  Error,  how  reviewed.  Exclusion  of  evidence.  In 
an  action  to  foreclose  mechanics'  liens,  objections  as  to  the 
amount  of  the  judgment  cannot  be  reviewed  upon  an  appeal 
from  an  order  denying  a  motion  for  new  trial.3 

Additional  matter  to  foot-note  7.4 


1  California.      Stockton    L.    Co.    v.    Schuler,    7   Cal.    App.    257,    94    Pac. 
Rep.   399. 

2  I    :i\\      Of    the     i-.'l-i-: 

California:  See  Hubbard  v.  Lee,  10  Cal.  App.  477,  480,  102  Pac.  Rep. 
528;  s.  c.,  6  Cal.  App.  602,  92  Pac.  Rep.  744. 

New  Mexico.  See  Cowles  v.  Hagerman  (N.  M.),  110  Pac.  Rep.  843, 
844;  s.  c.,  Hagerman  v.  Cowles,  14  N.  M.  422,  94  Pac.  Rep.  946. 

I\:IIISIIM.  Jurisdiction  of  Appellate  Court  as  to  amount  In  contro- 
versy: See  Wichita  S.  &  D.  Co.  v.  Well,  80  Kan.  606,  103  Pac.  Rep. 
1003,  1004. 

Montana.  Review  mm  to  credit*  to  be  allowed  owner:  See  Mills  v. 
Olsen  (Mont.),  115  Pac.  Rep.  33,  35. 

\\  :i-iiiiiui..n.  Appeal  not  allowed  on  mere  question  of  costs:  Jensen 
v.  Sheard,  49  Wash.  593,  96  Pac.  Rep.  2. 

Kqulty  milt  to  foreclose  lien  heard  de  novo  In  Supreme  Court:  Jones 
V.  Nelson  (Wash.),  112  Pac.  Rep.  88,  89;  Pacific  L.  &  T.  Co.  v. 
Dalley  (Wash.),  Ill  Pac.  Rep.  869,  870. 

Case  tried  on  theory  of  authority  of  agent  not  viewed  otherwise  on 
appeal:  Driver  v.  Galland,  58  Wash.  62,  109  Pac.  Rep.  593,  595. 

3  California.    Rockwell  v.  Light,  6  Cal.  App.  563,  566,  92  Pac.  Rep.  649. 

4  California.      BUI   of  exceptions,  requisites  i      See  Coghlan   v.   Quar- 
tararo,    (Cal.   App.),    115   Pac.    Rep.    664. 


301  APPEAL.  §§  958-964 

§  958.     Same.    Writ  of  review. 
Additional  matter  to  foot-note  8.5 

§  959.    Parties  to  appeal. 
Additional  matter  to  foot-note  10.6 

§  960.     Same.    Definition  of  adverse  party. 
Additional  matter  to  foot-note  II.11 

§  961.  Same.  Appeal  from  judgment  denying  lien. 
Death  of  one  personally  liable.12 

§  962.    Notice  of  appeal.13     Contents.     Sale  of  property. 
§  963.     Same.    Personal  judgment  against  contractor.14 

§  964.    Same.     Upon  whom  served.13  .»       $ 

Additional  matter  to  foot-note  17. 16 

Colorado.  Appellate  Court  trill  not  entertain  error  at  instance  of 
trustee  in  bankruptcy  for  voluntary  payment  of  mechanic's  lien 
judgment:  See  Hawthorne  v.  Hendrie  &  Bolthoff  Mfjg-.  &  S.  Co.  (Colo. 
Sup.),  116  Pac.  Rep.  122,  125. 

5  Colorado.  Question  of  mere  right  to  lien,  whether  considered  on 
appeal  or  on  error:  See  Rice  v.  Rhone  (Colo.),  Ill  Pac.  Rep.  585. 

10  California.     Compare  Danaldson  v.  Orchard  C.  O.   Co.,   6  Cal.  App. 
641,  92  Pac.  Rep.   1046. 

Oklahoma.  See  Jones  v.  Balsley,  25  Okl.  344,  106  Pac.  Rep.  830,  111 
Pac.  Rep.  942. 

Washington.  See  Exposition  A.  Co.  v.  Empire  State  S.  Co.,  49 
Wash.  637,  97  Pac.  Rep.  464,  96  Pac.  Rep.  158. 

11  California.      Compare   as   to   prior  mortgage:      Barrett-Hicks   Co. 
v.  Glas,  99  Pac.  Rep.   857,  861;   s.  c.,  9  Cal.  App.   491,   99  Pac.  Rep.   856, 
111    Pac.    Rep.    760;    s.    c.,   sub   nom.   Burnett  v.    Glas,    154   Cal.    249,    97 
Pac.   Rep.   423. 

Idaho.  See  Naylor  &  Norlin  v.  Lewiston  &  S.  E.  E.  Ry  Co.,  14  Idaho 
789,  96  Pac.  Rep.  573,  95  Pac.  Rep.  827. 

12  See    "Parties,"    §§  659   et   seq.,   this   Supplement,  ante. 

is  California.     See  new  and  additional  method  of  appeal,  §§  941a,  941b, 
941c  and  §§  953a,  953b  and  953c,  Code  Civ.  Proc.   (enacted  1907). 
i*  See  preceding  note. 

15  See  note  to  §  952,  ante. 

16  Idaho.     Nelson   Bennett  Co.  v.   Twin   Falls  L.   &  W.   Co.,   13   Idaho 
767,   92  Pac.  Rep.  980;   s.  c.,  14  Idaho  5,  98  Pac.  Rep.   789. 

Montana.  See  Mclntyre  v.  Montana  G.  M.  M.  Co.,  41  Mont.  87,  108 
Pac.  Rep.  353. 

Oklahoma.  See  Jones  v.  Balsley,  25  Okl.  344,  106  Pac.  Rep.  850,  111 
Pac.  Rep.  942. 


§§  965-969          MECHANICS1    LIENS — SUPPLEMENT.  3Q2 

§  965.     Same.     Contractor  not  adverse  party.17 

§  966.    Same.    Contractor  adverse  party.    Default 
Additional  matter  to  foot-note  20. 1H 

§  967.  Same.  Subsequent  mortgagee.  Injuriously  af- 
fected. AVhere  a  mortgage  debt  is  not  yet  due  and  is  subse- 
quent or  prior  to  all  the  mechanics'  liens  on  the  property, 
and  the  mortgagee  does  not  appeal,  the  mortgagors  who  are 
defendants  in  the  mechanics '-lien  actions  on  their  appeal  may 
object  to  that  part  of  the  decree  ordering  payment  of  the 
mortgaged  debt  for  the  reason  that  the  mortgagor  might  be 
injured  by  such  decree,  as  a  deficiency  judgment  might  be 
entered  by  a  premature  sale  of  the  land.10 

§  968.  Same.  Beneficially  affected.  The  time  at  which 
work  of  construction  begins  is  only  material  for  the  purpose 
of  establishing  the  rank  of  the  lien  claimants  with  reference 
to  mortgages  and  similar  prior  liens.  And  where  the  mort- 
gagee does  not  appeal  from  the  judgment,  the  mortgagee 
alone  has  the  right  to  complain  as  to  the  order  in  which 
the  court  directs  the  mortgagee's  lien  to  be  satisfied  out  of 
the  proceeds  of  the  sale  of  the  property,  except  lien  claim- 
ants whose  liens  rank  subsequent  thereto  in  the  decree.20 

§  969.  Same.  Who  need  not  be  served  with  notice  of 
appeal. 

Additional  matter  to  foot-note  23. 21 


IT  See  note  to   $962,  ante,    >. 

is  Idaho.  See  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  13  Idaho 
767,  92  Pac.  Rep.  980;  s.  c.,  14  Idaho  5.  93  Pac.  Rep.  789. 

10  California.  Barrett-Hicks  Co.  v.  Glas  (Cal.  App.),  Ill  Pac.  Rep. 
760,  766;  8.  c.,  9  Cal.  App.  491,  99  Pac.  Rep.  956;  s.  c.,  sub  nom.  Burnett 
v.  Glas,  164  Cal.  249,  97  Pac.  Rep.  423. 

20  California.     Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  861;  s.  c., 
9  Cal.  App.   491,   99  Pac.  Rep.  856,   111  Pac.   Rep.   760;   s.   c.,   sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

21  Idaho.      Likewise    as   to   subcontractors    who   were    made    parties 
defendant  in  the  action  to  foreclose  the  lien  of  the  original  contractor 
and  who  filed  no  pleadings,  no  finding:  nor  judgment  being  made  for 
or  against  them:     Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  13 
Idaho  767,  92  Pac.  Rep.  980;  s.  c.,  14  Idaho  5.  93  Pac.  Rep.  789. 


303  APPEAL.  §§  970-973 

§  970.     Same.     Service  waived  by  stipulation.22 

§  971.     Bond  for  costs.    Staying  judgment.    Lien  subordi- 
nate to  lien  foreclosed. 

Additional  matter  to  foot-note  28. 23 

§  972.     Stay  bond.    Lien  enforced. 
Additional  matter  to  foot-note  30.24 

§  973.    Insufficient  record.25     Compliance  with  specifica- 
tions.   Void  contract.26 

Additional  matter  to  foot-note  31.27 


22  See  note  to  §  952,  ante. 

23  Montana.      Distinction   between   statutory  undertaking   and   statu- 
tory bond:     See  Deer  Lodge  Co.  v.  United  States  F.  &  G.  Co.    (Mont.), 
112  Pac.  Rep.  1060,  1062. 

24  See   §§  21  and  952,  this  Supplement,  ante,  notes. 

Idaho.  Stay  bond:  See  Naylor  &  Norlin  v.  Lewiston  &  S.  E.  E. 
Ry.  Co.,  14  Idaho  722,  95  Pac.  Rep.  827,  828,  829,  96  Pac.  Rep.  573. 

25  Insufficient   record: 

California.  Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  861;  s.  c., 
9  Cal.  App.  491,  99  Pac.  Rep.  856,  111  Pac.  Rep.  760;  s.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

Idaho.  Insufficient  record:  As  to  disposition  of  demurred  and  order 
overruling  motion  for  new  trial:  Naylor  &  Norlin  v.  Lewiston  &  S.  E. 
E.  Ry.  Co.,  14  Idaho  789,  96  Pac.  Rep.  573,  575,  95  Pac.  Rep.  827. 

Wyoming.  Record  on  appeal:  See  Greenawalt  v.  Natrona  I.  Co., 
16  Wyo.  226,  92  Pac.  Rep.  1008. 

26  California.      The    Statutory    Original    Contract    was    abolished    by 
Amendment    of    May    1,    1911,    to    §  1183,    Code    Civ.    Proc.    (Stats,    and 
Amdts.    1911,    pp.    1313,  et   seq.). 

See  §§  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

27  California.     Beck  v.  Schmidt,   13  Cal.  App.   448,   110  Pac.   Rep.   455, 
456. 

Colorado.  Long  and  complicated  account  should  be  stated  by  lower 
court  or  referee;  otherwise  judgment  will  be  affirmed:  Stubbs  v. 
Montezuma  L.  Co.,  45  Colo.  219,  100  Pac.  Rep.  433;  Hottel  v.  Poudre 
Valley  R.  Co.,  41  Colo.  370,  92  Pac.  Rep.  918,  921. 

New  Mexico.  Insufficient  record:1  As  to  terms,  time  given  and  con- 
ditions of  contract;  Claim  of  lien  held  sufficient  on  appeal:  Gray  v. 
New  Mexico  P.  S.  Co.,  (N.  M.),  110  Pac.  Rep.  603,  604. 

Washington.  Refusal  to  review  testimony  as  to  amount  due  and 
amount  of  labor  and  materials  furnished:  See  Cornelius  v.  Washing- 
ton S.  Laundry,  52  Wash.  272,  100  Pac.  Rep.  727,  729. 

Time  of  filing  proposed  statement  of  fact:  See  Owen  v.  Casey. 
48  Wash.  673,  94  Pac.  Rep.  473. 


§§  974-979          MECHANICS'    LIENS — SUPPLEMENT.  304 

§  974.    Presumptions  on  appeal.-8    In  general. 
Additional  matter  to  foot-note  32.29 

£  975.     Same.    Extent  of  land.  " 

£  976.  Same.  Support  of  findings.  Where  findings  are 
not  attacked  by  any  specification  of  insufficiency  of  evidence 
to  support  them,  such  evidence  will  be  presumed  to  have 
been  introduced.31  The  findings  of  the  trial  court  are  to 
receive  such  construction  as  will  uphold  rather  than  de- 
feat the  judgment.32 

Additional  matter  to  foot-note  35.33 

§  977.    Same.     For  what  work  amount  found  due. 
Additional  matter  to  foot-note  38.34 

£  978.    Same.    What  not  presumed  on  appeal.3-"' 

$  979.  What  not  involved.  Validity  of  deficiency  judg- 
ment against  contractor.  Appeal  by  owner. 

28  Presumptions 

Montana.  Presumption  that  all  contested  question*  of  fact  were 
decided  in  respondent's  favor  where  appellate  court  can  not  ascertain 
how  lower  court  arrived  at  amount  awarded  to  claimant:  Mills  v. 
Olsen  (Mont.),  115  Pac.  Rep.  33,  35. 

Washington.  Presumption  ait  to  deposit  Into  court  being  uncondi- 
tional! See  Ferdig  v.  Simpson,  47  Wash.  475,  92  Pac.  Rep.  370. 

20  Washington.  Presumption  that  there  vva*  no  abuse  of  discretion! 
Bellingham  v.  Llnck,  53  Wash.  208,  101  Pac.  Rep.  843,  844. 

so  See  §§  438  et  scq.,  this  Supplement,  ante. 

31  California.     Hill  v.  Clark,  7  Cal.  App.  609,  612,  95  Pac.  Rep.  382. 

32  California.     Pacific  L.  Co.  v.  Wilson,   6  Cal.  App.  561,   562,  92  Pac. 
Rep.   654. 

33  California.      C.    Scheerer   &    Co.    v.    Deming-,    154    Cal.    138,    143,    97 
Pac.   Rep.    155.     See   Hoffman-Marks  Co.   v.   Spires,    154   Cal.    Ill,   118, 
97  Pac.  Rep.  152.     Compare  Western  L.  &  M.  Co.  v.  Merchants'  A.  Co., 
13  Cal.  App.  4,  108  Pac.  Rep.  891,  894;  Reed  v.  Harshall,  12  Cal.  App. 
697,   108   Pac.   Rep.    719. 

Oreieon.  Suit  to  foreclose  tried  de  novoj  findings  of  lower  court, 
If  considered  at  all,  are  merely  advisory:  Edmunds  v.  Welling  (Oreg.), 
110  Pac.  Rep.  533.  _ 

Washington.  As  to  attorneys'  fee*:  Housekeeper  v.  Livingstone, 
48  Wash.  209,  93  Pac.  Rep.  217,  218. 

34  See  "Findings,"  f  |  885  et  seq.,  this  Supplement,  ante. 

35  Compare  "Presumptions,"   {  974,  ante. 


305  APPEAL.  ||  979-981 

Additional  matter  to  foot-note  42.36 

§  980.    Findings.    When  objections  not  considered. 
Additional  matter  to  foot-note  43. 37 
Additional  matter  to  foot-note  44.38 
Additional  matter  to  foot-note  45.39 

§  981.  Same.  On  appeal  from  order  denying  motion  for 
new  trial.40 

36  Colorado.      As   to    failure   to   request    finding;:      See   Ross   M.    &   M. 
Co.  v.  Sethman    (Colo.),   114  Pac.  Rep.   287. 

37  Arizona.      Bank    of   Arizona    v.    Thomas    Haverty    Co.    (Ariz.),    115 
Pac.   Rep.   73,  75. 

California.  ,  Boyd  v.  Bargagliotti,  12  Cal.  App.  228,  243,  107  Pac. 
Rep.  150;  Barber  A.  P.  Co.  v.  Santa  Barbara  I.  Co.,  13  Cal.  App.  597, 
110  Pac.  Rep.  463,  464;  Lucas  v.  Gobbi,  10  Cal.  App.  648,  652,  103  Pac. 
Rep.  157;  Hill  v.  Clark,  7  Cal.  App.  609,  611,  95  Pac.  Rep.  382;  Hub- 
bard  v.  Lee,  6  Cal.  App.  602,  607,  92  Pac.  Rep.  744;  s.  c.,  10  Cal.  App. 
477,  102  Pac.  Rep.  528.  See  Hoffman -Marks  Co.  v.  Spires,  154  Cal.  Ill, 
117,  97  Pac.  Rep.  152;  Stimson  M.  Co.  v.  Hughes  Mfg.  Co.,  5  Cal.  App. 
559,  97  Pac.  Rep.  322. 

Colorado.  Ross  M.  &  M.  Co.  v.  Sethman  (Colo.),  114  Pac.  Rep.  287; 
Foley  v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14;  Gillett  v.  Young,  45 
Colo.  562,  101  Pac.  Rep.  766;  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo. 
370,  92  Pac.  Rep.  918,  919. 

Idaho.  Steltz  v.  Armory  Co.,  15  Idaho  551,  99  Pac.  Rep.  98,  99;  Val- 
ley L.  Co.  v.  Driessel,  13  Idaho  662,  93  Pac.  Rep.  765,  771. 

Construction  of  findings:  Nelson  Bennett  Co.  v.  Twin  Falls  L.  & 
W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  796,  92  Pac.  Rep.  980. 

See   §  885,  this   Supplement,  ante. 

Nevada.  Tonopah  L.  Co.  v.  Nevada  A.  Co.,  13  Nev.  445,  97  Pac.  Rep. 
636,  638. 

Oklahoma.  Standard  L.  Co.  v.  Miller  &  Vidor  L.  Co.,  21  Okl.  617, 
96  Pac.  Rep.  761,  764;  Vandenberg  v.  P.  T.  Walton  L.  Co.,  19  Okl.  169, 
92  Pac.  Rep.  149. 

Washington.  Bellingham  v.  Linck,  53  Wash.  208,  101  Pac.  Rep.  843, 
844;  Smythe  v.  Lance,  52  Wash.  560,  100  Pac.  Rep.  995;  Rasmussen 
v.  Liming,  50  Wash.  184,  96  Pac.  Rep.  1044;  Cornelius  v.  Washington 
S.  Laundry,  52  Wash.  272,  100  Pac.  Rep.  727,  729;  Strandell  v.  Moran, 
49  Wash.  533,  95  Pac.  Rep.  1106. 

Where  the  lower  court  does  not  make  a  finding;  upon  a  particular 
issue,  it  is  not  ground  of  reversal  where  the  appellant  does  not  re- 
quest such  finding  and  where  the  judgment  rendered  it  inconsistent 
with  any  other  theory  than  that  the  court  did  so  find:  Cornelius  v. 
Washington  S.  Laundry,  52  Wash.  272,  100  Pac.  Rep.  727,  729. 

38  California.      As   tn    contractor   being   delayed   in    his    work    by    the 
architect    of   the    owner:      Seebach    v.    Kuhn,    9    Cal.    App.    485,    490,    99 
Pac.  Rep.  723. 

Oregon.  But  see,  contra:  Edmunds  v.  Welling  (Oreg.),  110  Pac. 
Rep.  533. 

so  California.     Robison  v.  Mitchell   (Cal.  Sup.),  114  Pac.  Rep.  984,  989. 
40  See   "New   Trial,"    §877,   this   Supplement,   ante. 
Bloom's  Sup. — 20 


§§  982-985 


MECHANICS'    LIENS  —  SUPPLEMENT. 


§982.  Same.  Who  can  not  attack  findings.41  General 
creditors. 

§  983.  Harmless  error.  Appellant  can  not  complain  of  a 
conclusion  of  law  as  not  supported  by  the  findings  of  fact 
when  such  conclusion  is  in  his  favor.42  When  a  question  is 
excluded  and  the  witness  has  already  given  in  his  testimony 
the  elements  from  which  the  answer  to  the  main  question  is 
deducible,  it  is  not  reversible  error.33 

Additional  matter  to  foot-note  48.44 

Additional  matter  to  foot-note  49.4r> 

§  984.     Same.     Sufficiency  of  claim  of  lien. 
Additional  matter  to  foot-note  51.  40 

§  985.  Objecting  on  appeal  for  first  time.  Contract  not 
entirely  filed. 

Additional  matter  to  foot-note  52.47 

41  See  "Findings,"  §§885  et  seq.,  this  Supplement,  ante. 

42  California.     Dahlberg  v.  Girsch,  157  Cal.  324,  332,  107  Pac.  Rep.  616. 

43  California.     C.   Scheerer   &   Co.   v.   Deming,    154   Cal.    138,    143,    97 
Pac.  Rep.  155. 

44  California.      Where    no    Inane    In    presented    as    to    the    amount    of 
liquidated   damages  provided   in    the   contract   or  claimed   on   account 
thereof,  and  the  court   finds   that  the  contract   is  substantially  com- 
pleted, there  is  no  room  for  inquiry  as  to  the  damages,  and  evidence 
improperly  excluded  as  to  damages  is  not  prejudicial:     Hill  v.  Clark, 
7  Cal.  App.   609,  612,   95   Pac.   Rep.   382. 

California.  An  to  une  of  teams  and  driver*:  See  San  Francisco  T. 
Co.  v.  Gray,  11  Cal.  App.  314,  104  Pac.  Rep.  999. 

Am  to  overruling:  demurreri  Bacigalupi  v.  Phoenix  B.  &  C.  Co. 
(Cal.  App.),  112  Pac.  Rep.  892. 

Colorado.  Hottel  v.  Poudre  Valley  R.  Co.,  41  Colo.  370,  92  Pac. 
Rep.  918,  920. 

Idaho.  AM  to  admlNnlon  of  evidence;  general  rules:  Nelson  Bennett 
Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  799,  92 
Pac.  Rep.  980. 

Washington.  An  to  overruling  demurrer:  Dickerman  v.  Reeder 
(Wash.).  109  Pac.  Rep.  1060. 

45  California.     Barrett-Hicks  Co.  v.  Glas,  99  Pac.  Rep.  857,  861;  s.  c.. 
9  Cal.  App.  491,   99  Pac.  Rep.   856,   111   Pac.   Rep.   760;   s.  c.,  sub  nom. 
Burnett  v.  Glas,  154  Cal.  249,  97  Pac.  Rep.  423. 

46  Washington.     Under  statute  allowing  amendment  of  lien   notice, 
same  deemed  amended  in  appellate  court  to  promote  substantial  jus- 
tice:   Cornelius  v.  Washington  S.  Laundry,  52  Wash.  272,  100  Pac.  Rep. 
727,  729. 

47  California.     A*  to  eatoppelt     Hubbard  v.  Lee,  6  Cal.  App.  602,  609, 
92   Pac.   Rep.   744;   s.   c.,   10   Cal.   App.    477,    102   Pac.    Rep.    528.     As   to 


307  APPEAL.  §§  986-991 

§  986.  Same.    Description  of  land.48 

§  987.  Same.     Uncertainty  of  interest  in  property. 

§  988.  Consolidated  cases.49     Hearing  on  appeal. 

V 

§  989.     Order  on  appeal.50    New  trial. 
Additional  matter  to  foot-note  57. 51 

§  990.     Same.    New  trial/'2    When  sustained. 

§  991.     Same.     Attorneys'  fees. 
Additional  matter  to  foot-note  60.5:J 


modification  of  contract  by  parol:  Lacy  Mfg.  Co.  v.  Los  Angeles  G.  & 
E.  Co.,  12  Cal.  App.  37,  42,  106  Pac.  Rep.  413. 

Colorado.  As  to  change  in  cause  of  action  by  amendment:  Foley 
v.  Coon,  41  Colo.  432,  93  Pac.  Rep.  13,  14. 

Idaho.  As  to  failure  of  foreign  corporation  to  comply  with  state 
law:  See  Nelson  Bennett  Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5. 
93  Pac.  Rep.  789,  800,  92  Pac.  Rep.  980. 

]Vew  Mexico.     See  Neher  v.  Viviani   (N.  M.),  110  Pac.  Rep.  695,  698. 

Washington.     Driver  v.  Galland   (Wash.),   109  Pac.  Rep.  593,  594. 

*8  See  §§  399  et  seq.,  this  Supplement,  ante. 

49  See   "Consolidation,"    §§  869   et   seq.,   this   Supplement,   ante. 

50  Idaho.     Order  on   appeal;    findings   modified:      See   Nelson   Bennett 
Co.  v.   Twin   Falls  L.   &  W.   Co.,   14   Idaho   5,   93   Pac.   Rep.   789,   798,   92 
Pac.    Rep.    980. 

si  California.  See  Klokke  v.  Raphael,  8  Cal.  App.  1,  7,  96  Pac.  Rep. 
392. 

Idaho.  New  trial  of  whole  case:  See  Valley  L.  &  Mfg.  Co.  v. 
Nickerson,  13  Idaho  682,  93  Pac. -Rep.  24,  27. 

Kansas.  Compare  Wichita  S.  &  D.  Co.  v.  Weil,  80  'Kan.  606,  103 
Pac.  Rep.  1003,  1004. 

Washington.  Order  on  appeal:  See  Use  v.  Aetna  I.  Co.,  55  Wash. 
487,  104  Pac.  Rep.  787. 

52  See  "New  trial,"  §  877,  this  Supplement,  ante. 

53  See  §§  935  and  940,  this  Supplement,  ante. 

Oregon.  Order  on  appeal:  Litherland  v.  S.  Morton  Cohn  R.  E.  & 
I.  Co.,  54  Oreg.  1,  102  Pac. -Rep.  303,  100  Pac.  Rep.  1. 


308  MECHANICS'    LIENS — SUPPLEMENT. 

CHAPTER  XLVI. 

FORMS. 
CONTRACTS,  NOTICES,  CLAIMS,  COMPLAINTS,  ETC. 

Form  No.  1.  Statutory  original  contract.  Skeleton  form. 
Additional  matter  to  foot-note  2.1 
Additional  matter  to  foot-note  3.2 
Additional  matter  to  foot-note  4.3 
Additional  matter  to  foot-note  5.4 
Additional  matter  to  foot-note  II.5 

Form  No.  2.     Building  contract.    Clause  for  working 

drawings. 
Additional  matter  to  foot-note  12.° 

Form  No.  3.     Building  contract.    Clause  for  delays. 
Additional  matter  to  foot-note  14." 

Form  No.  4.     Building  contract.     Clause  for  certificates  of 

architect  as  to  payments. 
Additional  matter  to  foot-note  15. 8 

1  California.      The    Statutory    Original    Contract    was    abolished    by 
Amendment    of   May    1,    1911,    to    §  1183,    Code    Civ.    Proc.    (Stats,    and 
Amdts.  1911,  pp.  1313  et  seq.). 

See  Si  258,  269,  274,  281,  288  and  328,  this  Supplement,  ante. 

Clause  similar  to  paragraph  "Third"  but  not  mentioning  times  of 
payments,  construed:  Hettlnger  v.  Thiele  (Cal.  App.),  113  Pac. 
Rep.  121. 

2  \\  :iviiiiiui<ni.      Form   of  contract    for   ulnklngr  of  wells   to   supply  a 
municipality,  construed:     See  Green  v.  City  of  Ballard,  51  Wash.  149, 
98  Pac.  Rep.  95. 

or, -mui.     "Good  and  workmanlike  manner"  construed:     Holland  v. 
Rhoades   (Oreg.),  106  Pac.  Rep.  779. 

4  California.     Clause   construed:   Bacigalupi   v.   Phoenix    B.   &   C.    Co. 
(Cal.  App.),  112   Pac.  Rep.  892,   895. 

5  Idaho.     As    to    withholding    money:     See     Rathbun     v.     State,    15 
Idaho,  273,  97  Pac.  Rep.   335. 

e  Wa*hlnffton.  Clause  as  to  work  under  direction  of  architect:  See 
Sweatt  v.  Bonne  (Wash.),  110  Pac.  Rep.  617. 

~  California.  A*  to  boycott  and  Mrlket  See  J.  F.  Parkenson  Co.  v. 
Building  Trades  Council,  154  Cal.  581,  98  Pac.  Rep.  1027,  1035. 

s  California.     This   form   construed:      See   Watson   v.   Alta   I.  Co.    12 


FORMS. 


309 


Form  No.  7.     Building  contract.     Clause  for  alterations  in 

contract. 

Additional  matter  to  foot-note  20.9 

Form  No.  8.     Building  contract.    Clause  for  written  changes 

in  contract. 
Additional  matter  of  foot-note  21. 10 

Form  No.  9.     Building  contract.    Clause  for  arbitration. 
Additional  matter  to  foot-note  23. 11 

Form  No.  10.     Building  contract.     Clause  for  damages  for 

delay  by  contractor. 
Additional  matter  to  foot-note  25.12 
Additional  matter  to  foot-note  26. 13 

Cal.  App.  560,  108  Pac.  Rep.  48;  Watson  v.  Alta  I.  Co.,  12  Cal.  App. 
566,  108  Pac.  Rep.  50;  Bacigalupi  v.  Phoenix  B.  &  C.  Co.  (Cal.  App.), 
112  Pac.  Rep.  892,  895.  See  Hettinger  v.  Thiele  (Cal.  App.),  113  Pac. 
Rep.  121. 

Idabo.  Estimates  of  work  by  engineer:  See  Nelson  Bennett  Co. 
v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  795,  92  Pac. 
Rep.  980. 

Washington.  Clause  as  to  payments  upon  certificates  of  tbe  archi- 
tect: See  Sweatt  v.  Bonne  (Wash.),  110  Pac.  Rep.  617. 

Clause  as  to  auditing  and  certification  of  expense  by  architect,  cer- 
tificate conclusive,  contrued:  Use  v.  Aetna  I.  Co.,  55  Wash.  487,  104 
Pac.  Rep.  787. 

9  California.      This   clause   was   construed   as   not   including   changes 
from  a  one-story  building  to'  a  two-story  building,  so  far  as  the  surety 
on    the    contractor's    bond    is    concerned:      Barrett-Hicks    Co.    v.    Glas, 
9    Cal.   App.    491,    499,   99   Pac.    Rep.    856,    111    Pac.   Rep.    760;    s.    c.,   sub 
nom.  Burnett  v.  Glas,  154  Cal.   249,  97  Pac.  Rep.  423. 

10  Washington.      Clause    as    to    alterations    upon    written    order    of 
architect  construed:     See  Sweatt  v.  Bonne  (Wash.),  110  Pac.  Rep.  617. 

Montana.  Provision  as  to  extras,  construed:  See  Piper  v.  Murray 
(Mont.),  115  Pac.  Rep.  669,  671. 

11  California.     Clause  for  decision  of  engineer  to  be   final  as   to  cor- 
rect interpretation  of  contract,  construed:     See  City  S.  I.  Co.  v.  Marys- 
ville,   155  Cal.   419,  421,  101  Pac.  Rep.  308. 

Idaho.  Engineer  as  umpire,  provision  construed:  See  Nelson  Ben- 
nett Co.  v.  Twin  Falls  L.  &  W.  Co.,  14  Idaho  5,  93  Pac.  Rep.  789,  795, 
92  Pac.  Rep.  980. 

12  Washington.     Clause  for  delay,  construed:     Goss  v.  Northern  Pa- 
cific H.  Assoc.,  50  Wash.  236,  96  Pac.  Rep.  1078. 

is  California.  This  form  construed:  Bacigalupi  v.  Phoenix  B.  & 
C.  Co.  (Cal.  App.),  112  Pac.  Rep.  892,  894. 

Clause  for  liquidated  damages:  See  Boyd  v.  Bargagliotti,  12  Cal. 
App.  228,  107  Pac.  Rep.  150. 


310  MECHANICS'    LIENS — SUPPLEMENT. 

Form  No.  11.  Building  contract.  Clause  for  liability  in  case 
of  destruction  of  building  before  completion.  Owner  and 
contractor  sharing  loss. 

Additional  matter  to  foot-note  27. 14 

Form  No.  13.     Building  contract.    Clause  for  inspection  and 

approval  of  work. 
Additional  matter  to  foot-note  29. 15 

Form  No.  14.     Building  contract.     Clause  for  completion 

of  building  by  owner,  upon  default  of  contractor. 
Additional  matter  to  foot-note  30. 16 

Form  No.  15.  Builder's  non-statutory  original  contract. 
Short  form.  (Agreement  to  build  a  house  according  to 
a  plan  annexed,  material  to  be  furnished  by  the  owner.)17 
Additional  matter  to  foot-note  31. 18 


14  California.  This  form  construed:  Watson  v.  Alta  I.  Co.,  12  Cal. 
App.  560,  108  Pac.  Rep.  48;  Watson  v.  Alta  I.  Co.,  12  Cal.  App.  561,  108 
Pac.  Rep.  50;  Hettinger  v.  Thiele  (Cal.  App.),  113  Pac.  Rep.  121. 

First  paragraph  construed:  See  Seebach  v.  Kuhn,  9  Cal.  App.  485, 
99  Pac.  Rep.  723. 

is  California.  Clause  for  doing  work  under  direction  of  engineer 
In  charge t  See  City  S.  I.  Co.  v.  Marysville,  155  Cal.  419,  421,  101  Pac. 
Rep.  308. 

Colorado.  Specifications  In  contract  for  construction  of  water  sys- 
tem relative  to  the  powers  of  the  engineer,  construed:  See  Town  of 
Sterling  v.  Kurd,  44  Colo.  436,  98  Pac.  Rep.  174. 

16  California.     This  form  construed:     Baclgalupi  v.  Phoenix  B.  &  C. 
Co.    (Cal.  App.),  112  Pac.  Rep.   892,  894;   Dahlberg  v.  Girsch.   157  Cal. 
324,  327,  107  Pac.  Rep.  616. 

Oregon.  Similar  form  with  some  additional  provisions  construed: 
Mclnnis  v.  Buchanan,  53  Oreg.  229,  99  Pac.  Rep.  929. 

Washington.  Substance  of  the  form  recommended  for  general  use 
l>y  the  American  Institute  of  Architects  and  the  National  Association 
of  Builders,  construed:  See  Keenan  v.  Empire  State  S.  Co.  (Wash.), 
113  Pac.  Rep.  636. 

17  California.      Clause   requiring   contractor   to   deliver   free   of   liens: 
See  Klokke  v.  Raphael,  8  Cal.  App.  1,  96  Pac.  Rep.  392. 

is  Form  of  contract  known  as  "Uniform  contract  adopted  and  ren- 
dered for  general  use  by  the  American  Institute  of  Architects  and 
the  National  Association  of  Builders"  referred  to  in  Rathbun  v.  State, 
15  Idaho  273,  97  Pac.  Rep.  335;  Keenan  v.  Empire  State  S.  Co.  (Wash.), 
113  Pac.  Rep.  636. 

Oregon.  "Good  and  workmanlike  manner,*  construed:  Holland  v. 
Rhoades  (Oreg.),  106  Pac.  Rep.  779. 


FORMS. 


311 


Form  No.  16.     Bond  for  performance  of  original  contract. 
Additional  matter  to  foot-note  33. 19 

Form  No.  17.     Notice  of  non-responsibility  by  owner. 

Structure. 
Additional  matter  to  foot-note  34. 20 

Form  No.  17a.     Notice  of  non-responsibility.    Structures  and 
Street  work.     (Under  §  1192  Cal.  C.  C.  P.,  as  amended, 
Stats,  and  Amdts.  1911,  pp.  1313  et  seq.) 
To  All  Whom  It  May  Concern : 

Notice  is  Hereby  Given  that  the  undersigned  is  the  owner 
in  fee  simple  absolute  of  the  lot  ,  'piece  and  parcel  of 
land  hereinafter  described;  that  the  name  of  said  owner 
is  -  — ;  that  the  nature  of  his  title  and  interest  is 

that  of  fee  simple  absolute;  that  said  owner  will  not  be 
responsible,  nor  will  said  land  nor  any  part  thereof  be  liable, 
for  any  improvement,  construction,  alteration  or  repair,  or 
work  or  labor,  or  materials  used,  in,  upon,  under  or  about 
said  land,  or  any  part  thereof,  or  the  sidewalk,  or  street,  in 

Owner  agreeing  to  provide  labor  and  materials  essential,  not  in- 
cluding the  contract,  so  as  not  to  delay  its  progress;  form:  See 
Mclnnis  v.  Buchanan,  53  Oreg.  229,  99  Pac.  Rep.  129. 

Contract  for  clearing  right  of  way  for  railroad;  form  construed: 
See  Williams  v.  Mount  Hood  Ry.  &  P.  Co.  (Oreg.),  110  Pac.  Rep.  490, 
111  Pac.  Rep.  17. 

Washington.  Form  of  contract  for  excavating,  blasting,  etc.,  con- 
strued: James  v.  Beebe  (Wash.),  109  Pac.  Rep.  732. 

Form  of  construction  contract:  See  Young  Men's  Christian  Assoc. 
v.  Gibson,  58  Wash.  307,  108  Pac.  Rep.  766,  767. 

Clause  in  contract,  contractor  saving  owner  harmless  from  liens:  See 
Holm  v.  Chicago  M.  &  P.  S.  Ry.  Co.  (Wash.),  109  Pac.  Rep.  799,  800. 

19  Colorado.     Condition  of  bond  construed  with  reference  to  furnish- 
ing of  labor  and  materials  and  payments:     See  Covey  v.  Schiesswohl 
(Colo.),    114   Pac.    Rep.    292. 

Washington.  Bond  that  the  contractor  will  replace  certain  portions 
of  the  work:  See  City  of  Spokane  v.  Costello,  57  Wash.  183,  106  Pac. 
Rep.  764. 

Agreement  between  surety  and  owner  for  surety  to  complete  build- 
ing, owner  waiving  claims  for  damages  for  delay,  etc.,  construed: 
Exposition  A.  Co.  v.  Empire  State  S.  Co.,  49  Wash.  637,  96  Pac.  Rep. 
158,  97  Pac.  Rep.  464. 

20  See    §1192    Code   Civ.    Proc.,   as   amended   May    1,    1911    (Stats,    and 
Amdts.  1911,  pp.  1313,  et  seq.). 


312  MECHANICS'    LIENS — SUPPLEMENT. 

front  of  or  adjoining  the  same,  nor  for  any  improvements  in 
connection  therewith. 

The  following  is  a  description  of  the  land  hereinabove 
referred  to,  to  wit: 

All  that  certain  lot,  piece  and  parcel  of  land  situate  in  the 
City  and  County  of  San  Francisco,  State  of  California,  more 
particularly   described  as  follows,   to  wit:    (here   describe 
land). 
Dated  -      — .  A.  B., 

Owner  in  fee  simple  ab- 
solute of  said  described  land. 

Form  No.  17b.  Verification  to  foregoing  notice  of  non-respon- 
sibility.    (Form  No.  17a.) 
State  of  California,  ^ 

s  SS 

City  and  County  of  San  Francisco,  j 

A.  B.,  being  duly  sworn,  deposes  and  says:  That  he  is  a 
white  male  citizen  of  the  United  States,  over  the  age  of 
twenty-one  years ;  that  the  foregoing  notice  is,  and  the  facts 
stated  therein  are,  true  of  his  own  knowledge ;  that  the  fore- 
going notice  is  a  full,  true  and  correct  copy  of  the  notice 
in  writing  posted  in  a  conspicuous  place  upon  the  property 
described  therein,  on  the  -  —  day  of  —  — ,  1911 ;  that 
affiant  is  the  -  -  owner  in  fee  simple  absolute  of  said 
property;  and  that  said  foregoing  copy  of  said  notice  and 
said  notice  posted  as  aforesaid  contain  a  description  of  the 
property  affected  thereby  sufficient  for  identification,  with 
the  name,  and  the  nature  of  the  title  and  interest  of  the 
person  giving  the  same.  A.  B. 

Subscribed   and   sworn   to   before   me   this  -       —  day   of 

— ,   1911. 

(Seal)  C.  D., 

Notary  Public  in  and  for  the  City  and  County  of  San  Fran- 
cisco, State  of  California. 


FORMS. 


313 


Form  No.  20.     Notice  to  owner  of  furnishing  materials  or 
performing  labor. 

Additional  matter  to  foot-note  36. 21 

Form  No.  31.    Release  of  lien. 

Additional  matter  to  foot-note  48. 22 

Form  No.  32.     Complaint  for  foreclosure  of  lien.     Original 
contractor,  under  non-statutory  original  contract. 

Additional  matter  to  foot-note  49. 23 

21  California.     In  this  form  strike  out  the  clause  "including  counsel 
fees,"  the  same  being  held  unconstitutional. 

Washington.  Notice  to  municipality;  form  construed:  Strandell  v. 
Moran,  49  Wash.  533,  95  Pac.  Rep.  1106. 

Notice  to  school  district:  Cascade  L.  Co.  v.  Aetna  I.  Co.,  56  Wash. 
503,  106  Pac.  Rep.  158;  Minneapolis  S.  &  M.  Co.  v.  Aetna  I.  Co.,  56 
Wash.  699,  106  Pac.  Rep.  160. 

22  Washington.     Release  of  lien;  form  construed:     Seattle  L.  Co.   v. 
Cutler   (Wash.),  116  Pac.  Rep.   1. 

23  California.     Tender  in  answer  by  owner,  construed:     Los  Angeles 
P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  521,  97  Pac.  Rep.  414,  420. 

Montana.  Form  of  complaint  to  foreclose  the  lien  for  constructing 
cistern:  See  Neuman  v.  Grant,  36  Mont.  77,  92  Pac.  Rep.  43. 


TABLE 

OF 

AMENDED  SECTIONS  AND  COMPARATIVE 
SECTIONS  OF  NEW  COMPILATIONS. 


CALIFORNIA. 

See  Appendix. 


(315) 


316  MECHANICS'    LIENS— SUPPLEMENT. 

OREGON. 

CHAPTER  XII. 
LIENS  ON  STRUCTURES.  MACHINERY  AND  LAND. 

Lord's  Oreg.  Laws.  B.  &  C.             H. 

§  7416  §  5640             9  3669 

8  7417  9  5641             9  3670 

9  7418  9  5642             9  3671 
9  7419  9  5643             9  3672 
97420  95644             93673 
9  7421  9  5645             9  3674 
9  7422  9  5646             9  3675 
9  7423  9  5647             9  3676 
9  7424  9  5648             9  3677 
§  7425  9  5649             9  3678 
§  7426  9  5650             9  3679 
§  7427  9  5651             9  3680 
§  7428  9  5652             9  3681 
9  7429  9  5653 

9  7430  9  5654 

9  7431  9  5655 

9  7432  9  5656 

9  7433  9  5657 

9  7434  9  5658 

9  7435  9  5659 

9  7436  9  5660 

9  7437  9  5661 

9  7438  9  5662 

9  7439  9  5663 

§  7440  9  5664 

9  7441  9  5665 

9  7442  9  5666 

9  7443  9  5667 

9  7444  9  5668 

9  7445  9  5669 

9  7446  L.  1907  C.  152,  9  3 

9  7447  L.  1907  C.  152,  9  4 

97448  L.  1907  C.  152,  95 

§  7449  L.  1907  C.  152,  9  6 

9  7450  L.  1907  C.  152,  9  7 


STATUTES— AMENDMENTS— NEW   COMPILATIONS. 

WASHINGTON. 

TITLE  VIII,  CHAPTER  III. 
[Remington  &  Ballinger's  Ann.  Codes  &  Stats.] 

LIENS   OF  MECHANICS   AND   MATERIAL-MEN. 

Pierce.  Rem.  &  Bal. 

§  6102  §  1129 

§  6103  §  1130 

§  6104  §  1131 

§  6105  §  1132 

§  6106  §  1134 

§  6107  §  1135 

§  6108  §  1136 

§  6109  §  1137 

§  6110  §  1138 

§  6111  §  1139 

§  6112  §  1140 

§  6113  §  1141 

§  6114  §  1142 

§  6115  §  1143 

§  6116  §  1144 

§  6117  §  1145 

§  6118  §  1146 

§  6119  §  1147 

§  6120  §  1148 

§  6133  §  1149 

§  6134  §  1150 

§  6135  §  1151 

§  6136  §  1152 

§  6137  §  1153 


318  MECHANICS'    LIENS— SUPPLEMENT. 

WYOMING. 

Compiled  Stats.  1910.  Rev.  Stats.  1899. 

§  3799  §  2889 

§  3800  §  2890 

§  3801  §  2891 

§  3802  §  2892 

§  3803  §  2893 

§  3804  §  2894 

§3805  (Amended  1911.)       §2895 

§  3806  §  2896 

§  3807  §  2897 

§  3808  §  2898 

§  3809  §  2899 

§  3810  §  2900 

§  3811  §  2901 

§  3812  §  2902 

§  3813  §  2903 

§  3814  §  2904 

§  3815  §  2905 

§  3816  §  2906 

§  3817  §  2907 

§  3818  §  2908 

§  3819  §  2909 

§  3820  §  2910 


APPENDIX 


CALIFORNIA  LIEN  LAW 

As     Amended     by     Chapter     681,     Statutes     and     Amendments     1911, 

Pages    1313    et    seq.,    Approved    May    1,    1911;    in    Effect 

Sixty    Days    From    and    After    May    1,    1911. 

FULLY  ANNOTATED,  BY  REFERENCES   TO  TREATISE   AND  SUP- 
PLEMENT. 


INTRODUCTORY  NOTE. 

While  much  might  be  written  in  a  speculative  way  relative 
to  the  construction  which  should  be  given  to  the  California 
mechanics '-lien  law  of  1911,  in  anticipation  of  the  decisions 
of  the  courts,  the  writer  has  preferred  to  simply  bind  the 
new  code  sections  into  his  work  by  numerous  references  to 
the  Treatise  and  Supplement.  The  previous  rulings  of  the 
appellate  courts  of  California  and  of  the  Western  States 
are  thus  promptly  brought  to  bear  upon  any  particular 
clause  under  consideration.  Throughout  the  Supplement, 
also,  references  have  been  made  to  changes  in  the  various 
provisions. 

The  author  of  the  bill  originally  introduced,  the  late  Alex- 
ander G.  Eells,  Esq.,  and  those  who  supported  it,  evidently 
looked  forward  to  a  greater  clarity  in  the  statute  and  a  more 
adequate  protection  for  those  for  whose  benefit  the  law  was 
intended.  In  the  process  of  legislation,  however,  the  bill 
proposed  was  modified  in  a  number  of  particulars.  Those 
who  opposed  the  original  bill  upon  grounds  of  policy,  notably 
Prank  Gr.  Drum,  Esq.,  and  H.  U.  Brandenstein,  Esq.,  so  far 
succeeded,  that  it  is  questionable  whether  the  results  antici- 
pated for  the  original  bill  will  be  achieved  in  the  amendments 
as  passed.  Indeed,  it  may  even  be  suggested  that  the 
changes  are  more  formal  than  substantial. 

San  Francisco,  Cal.,  July  1,  1911. 

Note:  For  index  to  code  sections,  see  Index  to  Supplement,  tit.  Cali- 
fornia Code  Sections,  post. 

(319) 


§  1183  C.  C.  P.  APPENDIX.  320 

2  §1183.     Mechanics,4  material-men,"'  contractors,0  sub-con- 

Persons  entitled.* 

1  Structures: 

See  Scope  note,  Treatise,  f  130. 

Division*  of,  before  amendment  of  1911:  See  Treatise  and  Supple- 
ment,  {§  134-137. 

2  First  clause;  Structures*     Before  amendment  of  1911:     See  Treatise 
and  Supplement,  IS  131-135. 

Importance  of  fixing  clause  under  which  case  falls:  See  Treatise 
and  Supplement,  I  136. 

Structures  In  generals     See  Treatise  and  Supplement,  f  173. 

Structures  enumerated  In  statutes  See  Treatise  and  Supplement, 
S  175. 

Structures  not  enumerated  In  statutes  See  Treatise  and  Supple- 
ment, |  174. 

Structures  In  mlness  See  Treatise  and  Supplement,  §  191.  See  note 
47,  |  1183. 

See  index,  tit.  "Structure." 

3  Persons   entitled  s 

See,  generally,  Treatise  and  Supplement,  {§  42-44. 

Constitutional  and  legislative  classifications  s  See  Treatise  and  Sup- 
plement, SS  28  and  42. 

4  Mechanics  s 

Definition  of  mechanics     See  Treatise,  S  110,  note,  page   102. 
Constitutional  and  legislative  classifications  s     See  Treatise  and  Sup- 
plement, S  42. 

5  Material-men  s      Constitutional    and   legislative   classifications  s      See 
Treatise  and  Supplement,  SS  28  and  42;  and  see,  generally,  1877-103. 

Definition  of  material-men  s     See  Treatise  and  Supplement,  I  78. 

Who  are  not  material-men:  See  Treatise  and  Supplement,  §{  79  and 
80. 

Distinction  between  material-man  and  original  contractor  and  sub- 
contractor: See  Treatise  and  Supplement,  §§  77,  81  and  60. 

Distinction  between  material-man  and  laborer:  See  Treatise  and 
Supplement,  (  93. 

Circumstances  under  which  a  lien  Is  given  to  material-man:  See 
Treatise  and  Supplement  Si  82-100. 

Rights  of  material-man:     See  Treatise  and  Supplement,  f  101. 

Obligations   of   material-mans      See   Treatise   and   Supplement,    S  102. 

Owner's  material-man,  right  of  action:  See  Treatise  and  Supple- 
ment. S  643. 

See  index,  tit.  "Material-man." 

6  Contractors      Constitutional    and    legislative    classifications:      See 
Treatise  and  Supplement,   55  28  and   42. 

Definition  of  original  contractors  See  Treatise  and  Supplement, 
145. 

Tests  or  original  contractors     See  Treatise  and  Supplement,  SS  46-59. 

Distinction  between  original  contractor  and  material-man:  See 
Treatise  and  Supplement,  {{  60,  77,  79  and  80. 

General  rights  of  original  contractor:  See  Treatise  and  Supplement, 
SS  61-63. 

General  obligations  of  original  contractors:  See  Treatise  and  Sup- 
plement, If  64,  65. 

See  Index,  tit.  "Original  contractor." 


321  APPENDIX.  §  1183  C    Q    p 

tractors,"    artisans,8    architects,9    machinists,10    builders,11  Persons  entitled. 

7  Subcontractors: 

Constitutional  and  legislative  classifications:  See  Treatise  and  Sup- 
plement, §§  28-42. 

Definition   of   "subcontractor":     See    Treatise    and    Supplement,    §  66. 

Different  degrees  of  subcontractors:  See  Treatise  and  Supplement, 
§  67. 

Distinction  between  subcontractor  and  material-man,  and  employee 
of  material-man:  See  Treatise  and  Supplement,  §§  68,  77  and  81. 

Distinction  between  subcontractor  nnd  assignee  of  original  con- 
tractor: See  Treatise  and  Supplement,  §  69,  and  note,  Treatise,  p.  72. 

General  rights  of  subcontractors:  See  Treatise  and  Supplement, 
§§  70-75. 

General  obligations  of  subcontractors:  See  Treatise  and  Supple- 
ment, §  76. 

See  Index,  tit.   "subcontractor." 

s  Artisans: 

Constitutional  and  legislative  classifications:  See  Treatise  and  Sup- 
plement, §§  28  and  42. 

Definition   of   artisan:      See   Treatise,    §  110,   note    8,    p.    102. 

Distinguished  fr«4m  contractor,  subcontractor  and  material-mam 
See  Treatise  and  Supplement,  §"  107. 

General  rights:     See  Treatise  and  Supplement,   §§  112-116. 

General  obligations:     See  Treatise  and  Supplement,   §§117,   118. 

See  Index,  tit.   "Laborer." 

9  Architects: 

Constitutional  and  legislative  classifications:  See  Treatise  and 
Supplement,  §§  28  and  42. 

Definition  of  architect:     See  Treatise,  §  121  and    §110,  note  8,  p.  102. 

Regulation  of  architects:     See  Treatise  and  Supplement,  §  122. 

Rights  of  architects:     See  Treatise  and  Supplement,  §  123. 

Right  of  architect  to  Hen:      See  Treatise  and  Supplement,   §  124. 

Powers  of  architect:     See  Treatise  and  Supplement,  §  125. 

Relation  between  architect  and  owner:  See  Treatise  and  Supple- 
ment, §  126. 

Architect  as  agent  of  owner:     See  Treatise  and  Supplement,  §  127. 

Architect  as  subcontractor:      See  Treatise,  §  128. 

Obligations  of  architect:  See  Treatise  and  Supplement,  §  129,  and 
see  duties  set  out  in  detail  in  §§  129a  et  seq.,  Supplement. 

Certificates  of  architect:     See  Treatise  and  Supplement,  §§  238-242. 

Fraud  of  architect:     See  Treatise  and  Supplement,  §  239. 

See  notes  8,  16,  17,  18,  19  and  20  to  §  1183  with  reference  to  perform- 
ance of  labor. 

See  Index,  tit.  "Architect,"  tit.  "Certificate,"  tit.  "Plans  and  Specifi- 
cations." 

10  Machinists: 

Constitutional  and  legislative  classifications:  See  Treatise  and  Sup- 
plement, §§  28  and  42. 

Definition  of  machinist:      See   Treatise,    §  110,   note  8,  p.    103. 

Distinguished  from  contractor,  subcontractor  and  material-man: 
See  Treatise  and  Supplement,  §  107. 

Machine  as  object  of  labor:     See  Treatise  and  Supplement,  §  180. 

General  rights:     See  Treatise  and  Supplement,  §§  112-116. 

General  obligations:     See  Treatise  and  Supplement,  §§  117,   118. 
Bloom's  Sup. — 21 


§1183C.r.P.  APPENDIX.  322 

Persons  entitled,  miners,12  [teamsters  l  '•'  and  draymen,]  14  and  all  persons  15 
and  laborers  of  every  class  16  performing  labor  17  upon,  [or 

Machinery  an  fixture:     See  Treatise  and  Supplement,  §§  185-187. 
See  Index,  tit.  "Laborer,"  tit.  "Machinery,"  tit.  "Fixtures." 

11  Builder*  i 

i  iiii-i  iin(i..n:ii  and  legislative  classification*:  See  Treatise  and  Sup- 
plement, if  28  and  42. 

HMiniih.il  of  bullderi     See  Treatise,  $  110,  note  8,  p.  102. 
DIstlngulNhed   from   contractors     See   Treatise,   15  58  and    107. 
General  rlKbt*:     See  Treatise  and  Supplement,  §§  112-116. 
General  obligation*:     See  Treatise  and  Supplement,  |{  117,   118. 
See  Index,  tit.  "Laborer,"  tit.  "Builder." 

12  Mineral 

ConMtltutlonal  and  legislative  classification*:  See  Treatise  and  Sup- 
plement, if  28  and  42. 

See,  also,  "Second  Clause,"  post,  this  section,  note  65. 

Definition  of  miner:     See  Treatise,   i  110,  note  8,  p.   103. 

Mining  Nuperlntendent:     See  Treatise,  §  150,  note  34. 

General  rights:     See  Treatise  and  Supplement,   §|  112-116. 

General    obligation*!     See   Treatise,    §§  117,   118. 

Work  In  mine*!     See  Treatise  and  Supplement,  f  $  145-155. 

See  Nature  of  labor!  Treatise  and  Supplement,  §8  130-165  and  par- 
ticularly i  165. 

See  Index,  tit.  "Laborer,"  tit.  "Mines,"  tit.  "Mines  and  Mining 
Claims." 

13  Teamsters: 

Constitutional  and  legislative  classifications:  See  Treatise  and  Sup- 
plement, §§  28  and  42. 

Teanmter  for  material-man:  See  Treatise  and  Supplement,  §  163, 
and  see  note  51,  p.  132,  Treatise. 

General  right*!     See  Treatise  and  Supplement,   §S  112-115. 

General  obligation*:     See  Treatise  and  Supplement,   §§  117,   118. 

See  Index,  tit.  "Laborers." 

l*  Draymen: 

•      Conatltutlonal  and  legislative  classifications:     See  Treatise  and  Sup- 
plement, {!  28  and  42. 

Teaming  for  material-man:     See  Treatise,   §  163. 

See  Teamster,  note  13,  this  section,  ante. 

15  All  persons  performing  labor: 

Distinction  between  "laborer"  and  "person  performing  labor":  See 
Treatise,  f  104,  note  4. 

Dl*tlnguliihed  from  "con  tract  or,"  "*ubcontractor"  and  "material- 
man":  See  Treatise  and  Supplement,  {  107. 

Do  not  create  "Intermediate  lien  holder*":  See  Treatise  and  Sup- 
plement, §  108. 

General  right*:     See  Treatise  and  Supplement,   J§  112-116. 

General  obligation*:     See   Treatise  and   Supplement,    55  117,    118. 

See,  generally,  "Nature  of  labor  for  which  a  lien  is  given,"  Treatise 
and  Supplement,  §§  130-165. 

See  note  16,  {  1183  C.  C.  P. 

See  Index,  tit.  "Laborers,"  tit.  "Labor." 

18  Laborer*  of  every  da**: 

Constitutional  and  legislative  clarifications:  See  Treatise  and  Sup- 
plement, §§  28  and  42. 


323  APPENDIX.  §  1183  Q    C    p 

bestowing  1S  skill 10  or  other  necessary  services,]  20  or  fur-  Persons  entitled. 
nishing21  materials22  to  be  used23  [or  consumed  in24  or 

Distinction     between     laborer    and    person     performing    labor:      See 

Treatise,  §  104,  note  4. 

"Laborer"  distinguished  from  "contractor,"  "subcontractor,"  and 
"material-man":  See  Treatise  and  Supplement,  §  107. 

Do  not  create  "Intermediate  lien  holders":  See  Treatise  and  Sup- 
plement, §  108. 

General  rights  of  laborer:     See  Treatise  and  Supplement,  §§  112-116. 

General  obligations  of  laborer:  See  Treatise  and  Supplement,  §§  117, 
118. 

See  General  nature  of  labor  for* which  lien  is  given:  Treatise  and 
Supplement,  §§  130-165. 

See  Index,  tit.  "Laborers,"  tit.  "Labor." 

17  Performing  labor: 

Classes  of  labor  for  which  a  lien  is  given:  See  Treatise  and  Supple- 
ment, §§  130-134. 

Distinction  between  "performing  labor"  and  "furnishing  labor"; 
See  Treatise,  §  138,  note  7,  p.  117. 

Distinction  between  "labor  performed"  and  "labor  bestowed":  See 
Treatise,  §  138. 

See  General   nature  of  labor:     Treatise  and   Supplement,   §§  130-165. 

is  Definition  of  "bestowed":     See  Treatise,  §  138. 

19  Skill;  definition: 
Standard  dictionary: 

1.  "The  familiar  knowledge  of  any  science,  art,  or  handicraft,  with 
corresponding  readiness  and  dexterity  in  execution  or  performance  or 
in  the  application  of  science,  art,  or  knowledge  in  general  to  practical 
purposes;  practical  efficiency;  dexterity." 

20  Other  necessary  services:     See,  generally,  "labor  for  which  a  lien 
is   given,"    Treatise   and    Supplement,    §§  130-165. 

21  Furnishing: 

"When  materials  are  "furnished":      See  Treatise  and  Supplement,  §  88. 

22  Materials: 

Distinction  between  labor  contract  and  contract  for  material:  See 
Treatise  and  Supplement,  §§  59,  80  and  83. 

Nature  of  materials,  when  lien  allowed  and  when  not:  See,  gener- 
ally, Treatise  and  Supplement,  §§  87-91. 

Package   of   material:     See    Treatise    and    Supplement,    §  90. 

Carriage  charges:     See  Treatise  and  Supplement,  §  91. 

See  Index,  tit.   "Materials,"  tit.   "Material-man." 

28  Use   nf   materials: 

Contract  for  use  of  materials:      See  Treatise  and  Supplement,  §  82. 

General   essentials:      See   Treatise   and   Supplement,    §  86. 

Nature  and  manner  of  use  of  materials:  See  Treatise  and  Supple- 
.ment,  §  87. 

Materials,  how  used:     See  Treatise  and  Supplement,  §  89. 

See  Index  tit.  "Materials,"  tit.  "Material-man,"  and  tit.  "Use  of  Ma- 
terials." 

24  Consumed: 

Materials  consumed:     See  Treatise  and  Supplement,  §  89. 

Powder   consumed:      See   Treatise   and   Supplement,    §  90. 

See  Index,   tit.   "Materials." 


§  1183  C.  C.  P.  APPENDIX.  324 

furnishing  appliances,2"'  teams-'1  and  power-7  contributing28 
Nature  of  work.w  to]  the  construction,30  alteration,31  addition  to  32  or  repair  33 
Object  of  labor.s*  either  in  whole  or  in  part,  of  any  building,3-"  wharf,36 

23  PurnlNliliifc   appliance*! 

VarlouM  appliances  enumerated:     See  Treatise  and  Supplement,  |  89. 

-'t  Team*: 

Definition:     See  Supplement,  f  91,  note. 

Teaming;  fur  material-man i     See  Treatise  and  Supplement,  {  163. 

Cartage  chart?™:     See  Treatise  and  Supplement,  |  91. 

See  notes  13  and  14  and  25,  this  section. 

27  Poweri 

See,  generally,  Treatise  and  Supplement,  §5  86-89. 

28  Contributing! 

See  "Labor  for  which  a  lien  is  not  given":  Treatise  and  Supple- 
ment, J  161. 

Preliminary  worki     See  Treatise  and  Supplement,  {  162. 

See,  generally,  Treatise  and  Supplement,  if  86-89. 

See  notes  25,  26  and  27,  supra,  this  section. 

2»  Labor  for  which  a  Hen  In  given:  See,  generally,  Treatise  and 
Supplement,  §i  130-165. 

See  notes   25-28,  supra,   this  section. 

so  Construction!  See,  generally,  Treatise  and  Supplement,  If  144, 
145,  and  148. 

Construction  of  mine:     See  Treatise  and  Supplement,  9  150. 

General  nature  of  labor  for  which  a  lien  In  given!  See  Treatise  and 
Supplement,  |{  130-165. 

31  Alteration: 

Character  of  alteration:     See  Treatise  and  Supplement,  f  146. 

Distinction  between  alteration  and  repair:  See  Treatise  and  Sup- 
plement, $  147. 

Distinction  between  alteration  and  erection:  See  Treatise  and  Sup- 
plement, §  148. 

See,  generally,  Treatise  and  Supplement,  §}  144,  145. 

General  nature  of  labor  for  which  a  lien  Is  given:  See  Treatise  and 
Supplement,  |{  130-165. 

See  notes  30,  32  and  33,  f  1183. 

See  Index,  tit.  "Alterations." 

32  Addition   to: 

See   Treatise  and  Supplement,  f  144. 

Construction  of  contracts  as  to  "addition":  See  Treatise  and  Sup- 
plement, $  220. 

See  notes,  30,  31,  and  33,  $  1183,  C.  C.  P. 

33  Repair: 

Distinction  between  alteration  and  repair:     See  Treatise,  §  147. 
See,  generally,  Treatise,  |{  144  and  145. 

General  nature  of  labor  for  which  a  lien  Is  given!  See  Treatise  and 
Supplement,  IS  130-165. 

See  notes  30,  31  and  32,  |  1183,  C.  C.  P. 

34  Object  nf  labori 

See,  generally.  Treatise  and  Supplement,  §5  166-192. 

ss  Building! 

Variable  use  of  term:     See  Treatise,  }  170,  note  9. 

See,  generally,  Treatise  and  Supplement,  if  174  and  175. 

Ditch  not  a  building!     See  Treatise,  §  177. 


325  APPENDIX.  §  1183  C    Q    p 

bridge,"    ditch,38    flume,39    aqueduct,40    well,41    tunnel,42  Object  of  labor. 
fence,43    machinery,44    railroad,45   wagon   road 46   or   other 

Building  as  fixture:     See  Treatise,  §  186. 

See,  generally,  also,  "Object  on  which  labor  must  be  performed": 
Treatise  and  Supplement,  §§  166-192. 

Construction  of  contract  -with  reference:     See  Treatise,  §  220. 
See  Index,  tit.  "Building." 

36  Wharf: 

Wharf  not  a  bridge:     See  Treatise,   §  176. 

Ditch  not  a  wharf:     See  Treatise,  §  177. 

See,  generally,  Treatise  and  Supplement,  §§  166-192. 

37  Bridge: 

Bridge  not  a  wharf:     See  Treatise,  §  176. 

See,  generally,  Treatise  and  Supplement,  §§  166-192. 

38  Ditch: 

See  Treatise  and  Supplement,  §  177. 

Ditch  not  a  wharf:     See  Treatise,  §  177. 

Flume  considered  as  a  ditch:      See  Treatise,  §  177. 

Ditch  not  a  building:     See   Treatise,    §  177. 

See,  generally,  Treatise  and  Supplement,  §§  166-192. 

39  Flume: 

See,   generally,   Treatise,   §  177. 

Flume  considered  as  a  ditch:     See  Treatise,   §  177. 

See,  generally,  Treatise  and  Supplement,   §§  166-192. 

40  Aqueduct: 

See  Treatise,  §  177.  See,  generally,  Treatise  and  Supplement,  §§  166- 
192. 

41  Well: 

See  Treatise  and  Supplement,   §  178. 

Oil  well:     See  Treatise  and  Supplement,  §  172. 

Contract  to  bore  -well  holes,  construed:      See  Treatise,   §  220. 

"Water  well:     See  Treatise,   §  705. 

Appurtenances  to  -well:      See  Treatise,  §  440,  note  7. 

See,  generally,  Treatise  and  Supplement,  §§  166-192. 

42  Tunnel: 

Tunnel   in   mine:      See   Treatise,    §§  153   and    179. 
Tunnel  to  develop  water:    See  Treatise,  §  179,  note  35,  p.  143. 
Contract  to  timber  tunnel  construed:      See  Treatise,  §  220. 
See,  generally,  Treatise  and  Supplement,  §§  166-192. 
'  43  Compare   Treatise  and  Supplement,   §  174. 

44  Machinery: 

Object  of  labor,  generally:     See  Treatise  and  Supplement,  §|  166-192. 

"Work  upon  machinery  as  a  fixture:  See  Treatise  and  Supplement, 
§§  95,  180,  174,  185,  772,  447. 

Contract  to  furnish  certain  machinery:  See  Treatise,  §  228,  note, 
p.  177. 

Machine  in  mine  and  mining  claims:  See  Treatise  and  Supplement, 
§§  191,  445,  451. 

Lien  for  repairing  machinery  on  mine:     See  Treatise,   §  150. 

45  Railroad: 

Railroad  and  railway  as  structure:  See  Treatise  and  Supplement, 
§181. 

Extent  of  Hen  on  railroads:  See  Treatise  and  Supplement,  {{  447, 
449  and  181. 


§1183C.C.P.  APPENDIX.  ;;._,,; 

Extent  of  iien.so  structure,47  shall  have  a  lien  48  upon  the  property  40  upon 
which  they  have  bestowed  labor  or  furnished  materials,  for 
the  value  r>1  of  such  labor  done  and  materials  furnished  [and 

Application  of  mechanic*'  Hen  to  railroad:  See  Treatise  and  Sup- 
plement, §5  369,  447  and  403. 

Description  In  ca»e  of  mechanics'  Urn:     See  Treatise,  {  405. 

Tramway  on  mining  claim :     See  Treatise,  }  174. 

See,  generally,  Treatise  and  Supplement,  If  166-192. 

See  Index,  tit.  "Railroads." 

48  Wag-on  road: 

See  Treatise,  |  149,  note  29,  p.  122. 

47  "Other  •trncture"! 

Other  ntructureii  not  enumerated  In  statute,  generally!  See  Treatise 
and  Supplement,  5  174. 

Boarding  house  on  mining  clalmi     See  Treatise,  $  174. 
Ice-room,  attached  to  warehouses     See  Treatise,  §  174. 
Pipe  line  for  Irrigation  company:     See  Treatise,  §  174. 
Poles  net  In  ground  for  electric  line:     See  Treatise,  §  174. 
Reduction-works  upon  mine,  and  stamp  mill:     See  Treatise,  f  174. 
Swings  between  upright  posts:     See  Treatise,  f  174. 
See  notes  1  and  2,  §  1183,  C.  C.  P.,  ante. 
See  Index,   tit.   "Structures." 

48  Lien: 

Definition  of  Lien:     Treatise,  I  362. 

Classification  of  mechanics'  Hens:  See  Treatise  and  Supplement, 
§§ 10-17. 

Theory  of  the  lawt     See  Treatise  and  Supplement,  f  6. 

Kinship  between  statutes  of  different  states:  See  Treatise  and  Sup- 
plement, |  18. 

General  peculiarities  of  mechanics'  liens:  See  Treatise  and  Supple- 
ment. {}  19-23. 

See  Index,  tit.  "Liens." 

49  Property: 

Distinguished  from  object  of  labor:  See  Treatise  and  Supplement, 
§5  166.  167. 

Description  of  property  In  claim:  See  Treatise  and  Supplement, 
§J 399-407. 

Territorial  extent  of  Hen:     See  Treatise  and  Supplement,  {§  438-451. 

Estates  and  Interests  subject  to  Hen:  See  Treatise  and  Supplement, 
it  459-485. 

See  Index,  tit.  "Property,"  tit.  "Description  of  property  to  be 
charged." 

so  Extent  of  Hen: 

Territorial  extent:     See   Treatise,   {{446-448. 

Property  viewed  as  an  entirety:     See  Treatise,   §§  447-451. 

Lien  as  limited  by  contract:     See  Treatise,  {{  452-458. 

Estates  and  Interest*  subject  to  Hen,  by  contract:  See  Treatise  and 
Supplement,  f{  459-468. 

Estates  and  Interests  subject  to  Hen,  by  estoppel:  See  Treatise  and 
Supplement,  §§  469-485. 

Priorities:     See  Treatise  and  Supplement,   JJ  486-507. 

See  Index,  tit.   "Extent  of  lien,"  tit.  "Limitation   on   liens." 

BI  Valve  of  labor  and  materials: 


327  APPENDIX.  §11830.  0.  P. 

for  the  value  of  the  use  of  such  appliances,  teams  or  power], 
whether  at  the  instance  of  the  owner/"'2  or  of  any  other  per- 
son  acting  by  his  authority  or  under  him,54  as  contractor  or 
otherwise,55  and  [every  contractor,56  sub-contractor,57 


Construction  of,  as  lined  in  statutes:  See  Treatise  and  Supplement, 
§  456. 

Current  price  as  evidence  of  value:      See  Treatise,  §  833. 

Other  evidence  of  value:     See  Treatise,  §  834. 

Contract  as  evidence  of  value:  See  Treatise  and  Supplement,  §§  829- 
833. 

Statement  of  claim  showing  value:     See  Treatise,   §  390,  note   123. 

See  Index,  tit.  "Value."  , 

52  Owner: 

See,  generally,   Treatise  and  Supplement,  §§  508-571. 

General  rights  of  owner  and  employer:  See  Treatise  and  Supple- 
ment, §§  510-522. 

General  obligations  of  owner:     See  Treatise,   §§  523-546. 

Owner  and  reputed  owner:     See  Treatise  and  Supplement,  §  509. 

Liability  of  owner  upon  statutory  notice  to  withhold:  See  Treatise 
and  Supplement,  §§  547-571. 

See  Index,  tit.  "Owner,"  tit.  "Owner,  Employer  or  Person  Causing 
Improvement." 

53  Agency  for  owner: 

See,  generally,   Treatise  and  Supplement,   §§  572-584. 
Husband  as  agent  of  wife:     See  Treatise  and  Supplement,  §  572. 
Wife  as  agent  of  husband:     See  Treatise  and  Supplement,  §  572. 
See  Index,  tit.  "Agency,"  tit.  "Agent." 

54  "Acting  by  his  authority  or  under  him": 

Agency,  actual  and  ostensible:     See  Treatise  and  Supplement,   §  572. 

Agency  by  statutory  estoppel:  See  Treatise  and  Supplement,  §§  573- 
576. 

Persons  in  possession  as  agent  of  the  owner:  See  Treatise  and  Sup- 
plement, §§  577,  578. 

See  Index,  tit.  "Agency,"  tit.  "Agent." 

55  "As  contractor  or  otherwise": 

See   "Agency,"  generally,  Treatise  and  Supplement,   §§  572-584. 

As  to  contractor,  see  note   6,  this  section,  ante. 

Contractor  as  agent:     See  note  56,  this  section,  post. 

Person  in  possession  as  agent  of  the  owner:  See  Treatise  and  Sup- 
plement, §  575. 

As  to  vendee  in  possession:      See  Treatise  and  Supplement,  §§  463,  478. 

As  to  lessee:     See  Treatise  and  Supplement,  §§  464,  477,  and  574. 

As  to  unauthorized  trustee:     See  Treatise,  §  465. 

See  note  60,  this  section,  post. 

See  Index,  tit.  "Agent,"  tit.  "Agency,"  tit.  "Contractor,"  tit.  "Original 
Contractor." 

56  Contractor: 

Contractor  as  agent:      See  note  55,  this  section,  ante. 
See  contractor,  generally,  note  6,  this  section,  ante. 
Contractor  as  stautory  agent  of  the  owner:      See  Treatise  and  Sup- 
plement, §§  574  and  697. 

See  "Agency,"  generally:     Treatise  and  Supplement,  §§  572-584. 
See  Index,  tit.  "Agent,"  tit.  "Agency,"  tit.  "Original  Contractor." 


§11V{(1.  ('.  P.  APPENDIX.  328 

Agency  for  owner.  an(j  architect, :>s  builder  V)  or  other  person  having  charge60 
of  the  construction,  alteration,  addition  to  or  repair  t;i  either 
in  whole  or  in  part  of  any  building, r>-  or  other  improve- 
ment r>!  as  aforesaid  shall  be  held  to  be  the  agent r>4  of  the 
owner  for  the  purposes  of  this  chapter]. 

87  Subcontractor: 

Subcontractor  us  aKcnt  of  owner:     See  note  7,  this  section,  ante. 

subcontractor,  Kent-rally:     See   Treatise  and   Supplement.    §§  66-76. 

Agency:     See  Treatise,  5§  572-584. 

See  Index,  tit.  "Agent,"  tit.  "Agency,"  tit.  "Subcontractor." 

68  Architect: 

See  note  9,  this  section,  ante. 

Architect,  generally:  See  Treatise  and  Supplement,  ||  119-129,  and 
Supplement. 

Architect  an  agent  of  the  owner:  See  Treatise  and  Supplement, 
{  579. 

Agency,  generally:     See  Treatise  and  Supplement,  Si  572-584. 

See  Index,  tit.  "Architect,"  tit.  "Agent,"  tit.  "Agency." 

59  Builder:     See  note  11,  this  section,  ante. 

Definition  of  builder:     See   Treatise,   I  110,   note   8,   p.    102. 
Distinguished    from    contractor:      See    Treatise,    §§  58,    107. 
Agency,   generally:     See   Treatise   and   Supplement,   ff  572-584. 
See   Index,   tit.   "Builder,"   tit.   "Agent,"   tit.   "Agency." 

60  Other  person   having  charge: 
See  note   55,  this  section,  ante. 

Agency,  generally:     See  Treatise  and  Supplement,   55  572-584. 

See  Index,  tit.  "Vendor,"  tit.  "Vendee,"  tit.  "Lessor,"  tit.  "Lessee," 
tit.  "Agent,"  tit.  "Agency." 

81  Construction,  alteration,  addition   to  or  repair: 

See  Nature  of  work,  note   29,  this  section,  ante. 

Construction:     See  note  30,  this  section,  ante. 

Alteration:     See  note   31,  this  section,  ante. 

Addition  to:     See  note  32,  this  section,  ante. 

Repaint:     See   note   33,   this  section,   ante. 

Labor  for  which  Hen  In  given,  generally:  See  Treatise  and  Supple- 
ment, f§ 166-192. 

See  Index,  tit.  "Construction,"  tit.  "Alteration,"  tit.  "Repair,"  tit 
"Addition  to,"  tit.  "Alteration  or  Repair." 

02  Building: 

See  note  35,  this  section,  ante. 

See  Index,  tit.  "Building." 

63  Definition  of  "Improvement":      See  Treatise,   §  141. 
Improvement   distinct   from  the   land:      See  Treatise,   §  380. 
Meaning  of   Improvement    variable   an    lined    In    mechanics'    lien    law: 

See  Treatise,  g  171. 

Object  on  which  labor  must  be  performed:  See  Treatise  and  Sup- 
plement, §5  166-192,  and,  also,  5  158. 

See  Index,  tit.  "Improvement,"  tit.  "Structure,"  tit.  "Object  on  which 
labor  must  be  performed,"  and  see  specific  structures. 

64  Agent  of  owner:     See  §|  53,  54,  55,  56,  57,  58,  59,  and  60,  this  sec- 
tion, ante. 

See  Index,  tit.  "Agent,"  tit.  "Agency." 


329  APPENDIX.  §  1183  C 

Any  person  who  performs  labor  6~  in  any  mining  claim  or  M,lneil  and  MInln* 
claims.69  or  in  or  upon  any  real  property  worked  as  a  mine,70  second  ciauiie.es 

'  r  „  Persons  entitled.68 

either  in  the  development72  thereof  or  in  working  thereon  ?Tbiect  of  iabor.es 

Nature  of  work.'i 

65  Mine;*  and  mining  claims:   Second  Clause: 
Definition  of  mine:     See  Treatise  and  Supplement,  §  183. 

Labor  for  which  a  lien  is  given  in  mines:  See  Treatise  and  Sup- 
plement, §§132-137;  §§149-155;  §165. 

Object  on  which  the  labor  must  be  performed  in  mines:  See  Trea- 
tise and  Supplement,  §|  182-183. 

Work  on  fixtures  in  mines:     See  Treatise  and  Supplement,  §  191. 

See  Index,  tit.   "Mines  and  Mining  Claims." 

66  Persons  entitled:     See  notes  3-20,  this  section,  ante. 

Persons  entitled  in  general:      See  Treatise  and  Supplement,   §§  42-44. 
Liens   allowed   for   work   on   mining  claims:      See   Treatise   and    Sup- 
plement, §  150. 

67  Person    who    performs    labor:     See    notes    12,    15-17,    this    section, 
ante. 

Persons  performing  labor,  generally:  See  Treatise  and  Supplement, 
§§  104-118. 

Nature  of  labor  for  which  a  lien  is  given  In  mines:  See  Treatise 
and  Supplement,  §§132-137;  §§149-155,  and  §165. 

Liens  allowed  for  work  in  mining  claims:  See  Treatise  and  Sup- 
plement, §  150. 

See  Index,  tit.  "Mines  and  Mining  Claims,"  tit.  "Labor,"  tit.  "Labor 
for  which  a  lien  is  given,"  tit.  "Laborer,"  tit.  "Work." 

68  Object  of  labor:     See  note  34,  this  section,  ante. 

Object  on  which  labor  must  be  performed:  See  Treatise  and  Sup- 
plement, §§ 166-192. 

See  Index,  tit.  "Object  of  Labor." 

69  Mining  claim  or  claims: 

Definition  of  mining  claim:      See  Treatise,   §  182. 

What  not  included  within  meaning  of  mining  claim:  See  Treatise, 
{  182. 

Oil  well  a  mine  or  mining  claim:     See  Treatise,  §  182. 

See   Index,  tit.    "Mine,"   tit.    "Mining   Claims." 

TO  Real  property  worked  as  a  mine:      See  note  69,  this  section,  ante. 

Definition  of  mine:     See  Treatise,  §§  183  and  96. 

See  Index,  tit.   "Mines  and  Mining  Claims." 

71  Nature  of  -work: 

See   note   29   as   to   structure,   this   section,   ante. 

See,  generally,  Treatise  and  Supplement,  §§130,  165;  particularly, 
§§132-137;  §§149-155,  and  §165. 

Work  on  fixtures  on  mine:      See  Treatise  and  Supplement,   §  191. 
See  Index,  tit.  "Labor  for  which  lien  is  given." 

72  Development:      Drifting    not    strictly    alteration,    addition    to    or 
repair,  within  statute:     See   Treatise,   §§  96  and  152. 

Running  tunnel:     See  Treatise,  §  153. 

Shaft  and  other  mining  instrumentalities:      See  Treatise,   §  154. 
Development   -work,   generally:     See    Treatise   and    Supplement,    §§  7, 
150,  and  152. 

Exploration  of  geologist  and  mining  expert:      See  Treatise,  §  150. 
Cleaning  out  tunnel:     See  Treatise,  §  150. 
See  Index,  tit.  "Mines  and  Mining  Claims." 


1183C.  C.P. 


APPENDIX. 


330 


Extent  of  llen.TT 


Owner  actor.si 


Agency 
owner. 


for 


by  the  subtractive  process  "3  [or  furnishes  materials  to  be 
used  "4  or  consumed  7r>  therein],  has  a  lien76  upon  the  same 
and  the  works  ~8'owned  and  used  by  the  owners  for  [mill- 
ing or]  reducing  the  ores  from  the  same,70  for  the  value  80 
of  the  work  or  labor  done  or  materials  furnished  by  each 
respectively,  whether  done  or  furnished  at  the  instance  of 
the  owner  of  such  mining  claim  or  claims  or  real  property 
worked  as  a  [mine,82  or]  his  agent,83  and  every  contractor,84 


73  Subtrartlve  proceNMt 

See  note  72,  this  section,  ante. 
Drifting*     See  Treatise,  |  152. 

Levela,    chuten,    ntopen,    uprisen,    croM-cutn,    Incline*:      See    Treatise, 
|  154. 

See  Index,  tit.  "Mines  and  Mining  Claims." 

74  Material*  to  be  lined   In   nilnlnK  claims 
See  Material-man,  note  5,  this  section,  ante. 

Contract  for  une  of  materlalMi     See  Treatise  and  Supplement,  {  82. 

E*Nentlal>:     See  Treatise  and  Supplement,  §  86. 

Materlaln,  how   lined:     See  Treatise  and  Supplement,   JS  89,   96. 

Powder  for  blasting:     See  Treatise,  {  90. 

Mature    of    labor    for    which    uiied:     See    Treatise    and    Supplement, 
IJ99,   100. 

See    Index,    tit.    "Materials,"    tit.    "material-man,"    tit.    "mines    and 
mining  claims." 

73  See    note    5,    "Material-man";   note   74,   "Materials  to  be  used," 
this  section,  ante. 

(  ons  ii  in  pi  ion  of  material!     See  Treatise,   §  89. 

Powders     See   Treatise,    $  90. 

Oil*  and  fuel:     See  Treatise,  !  89,  note,  p.  88. 

76  Lien:     See  note  48,  this  section. 

77  Extent  of  lien: 

A«  to  mine:     See  Treatise  and  Supplement,  {§  443,  444,  451. 
See  Index,  tit.  "Mines,"  tit.  "Mines  and  mining  claims." 

78  Upon  the  name  and  the  workii: 
See  note  77,  this  section. 

Mill    and    reduction    workn:     See    Treatise,    |  451,    and    f  444,     note, 
p.  399. 

70  tir,-s    from   the   rame: 

CUM  torn  mill:     See  Supplement,  Index. 

so  For  the   value: 

See  note  51,  this  section,  ante. 

See  Index,  tit.  "Value." 

si  Owner  an  actor:     See  note  52,  this  section,  ante. 

12  Real  property  worked  an  a  mine: 

Dlntlnctlon   between   mining   claim   and   mine:     See   Treatise,   §  182. 

83  Agency   for  owner: 

See  note  63,  this  section,  ante. 

Pernon  working  mine  an  agent:      See  Treatise,   $§578,   696. 

84  Contractor:     Conntltutlonal     and     legislative     claMlncatlonn:     See 
Treatise  and  Supplement,  §§  28  and  42. 

•     Definition  of  original  contractor:     See  Treatise  and  Supplement,  i  45. 
Teatn  of  original  contractor:     See  Treatise  and  Supplement,  Si  46-59. 


331 


APPENDIX. 


1183  C.  C.  P. 


sub-contractor,85   [superintendent80  or]   other  person  hav-  Asency  for  owner. 

ing  charge  of  any  mining  or  work  or  labor  performed  in  and 

about  such  mining  claim  or  claims  or  real  property  worked 

as  a  [mine,  either]  as  lessee  87  or  under  a  working  bond  or 

contract  88  [thereon  shall]  be  held  to  be  the  agent  89  of  the 

owner  for  the  purposes  of  this  chapter. 

[The  liens  in  this  chapter  provided  for  shall  be  direct  Nature  of  lien-»° 
liens,91  and  shall  not  in  the  case  of  any  claimants,  other  Extent  ot  llen- 
than  the  contractor  be  limited,  as  to  amount,  by  any  contract  ta°«on?ctual  1Imi" 


Distinction     between     original     contractor     and     material-man:     See 

Treatise  and  Supplement,  §§  60,  77,  79  and  80. 

General  rights  of  original  contractor:  See  Treatise  and  Supplement, 
§§  61-63. 

General  obligations  of  original  contractors:  See  Treatise  and  Sup- 
plement, §§  64,  65. 

See  Index,  tit.  "Original  contractor." 

85  Subcontractors: 

Constitutional  and  legislative  classifications:  See  Treatise  and  Sup- 
plement, §§  28-42. 

Definition  of  "subcontractor":     See  Treatise  and  Supplement,   §  66. 

Different  degrees  of  subcontractors:  See  Treatise  and  Supplement, 
§  67. 

Distinction  between  subcontractor  and  material-man,  and  employee 
of  material-man:  See  Treatise  and  Supplement,  §§  68,  77  and  81. 

Distinction  betwreen  subcontractor  and  assignee  of  original  con- 
tractor: See  Treatise  and  Supplement,  §  69,  and  note;  Treatise,  p.  72. 

General  rights  of  subcontractors:  See  Treatise  and  Supplement, 
§§  70-75. 

General  obligations  of  subcontractors:  See  Treatise  and  Supple- 
ment, §  76. 

See  Index,  tit.  "Subcontractor." 

86  Superintendent: 

Distinction  between  mining  superintendent  and  superintendent  of 
a  mine:  See  Treatise,  §  150. 

87  Lessee  of  a   mine: 

Lessee  of  mine  as  agent  by  contract:  See  Treatise  and  Supplement, 
§§  464,  467,  and  421. 

See,  also,  Treatise,  §  36,  note,  p.  43. 

Lessee  of  mine  as  agent  by  estoppel:  See  Treatise  and  Supplement, 
§  477. 

Notice  of  non-responsibility,  generally:  See  Treatise  and  Supple- 
ment, .§§  469-485. 

88  Working  bond  or  contract:     See  note  87,  this  section,  ante. 
Vendee  in  possession:     See  Treatise  and  Supplement,  §§  463,  477  and 

478. 

89  See  notes  53,  65,  and  83,  this  section,  ante. 

90  Nature  of  lien: 

General  nature  of  lien:      See  note  47,   this  section,  ante. 
Classifications  of  lien:     See   Treatise  and  Supplement,   |§  10-17. 

91  Direct  lien: 

Definition:     See  Treatise   and   Supplement,   §§  10-14. 


§11S:{('.C.P.  APPENDIX. 

limitation?1  price  92  agreed  upon  between  the  contractor  and  the  owner 
except  as  hereinafter  provided ;'•'•''  but  said  several  liens04 
shall  not  in  any-  case  exceed  in  amount  the  reasonable 
value  '•'•"'  of  the  labor  done  or  material  furnished,  or  both, 
for  which  the  lien  is  claimed,  nor  the  price  agreed  !l(!  upon 
for  the  same  between  the  claimant  and  the  person  by  whom 
he  was  employed;  nor  in  any  case,  where  the  claimant  was 
employed  by  a  contractor,  or  sub-contractor,  shall  the  lien 
extend  to  any  labor  or  materials  not  embraced  within  or 
covered  !'7  by  the  original  contract !>s  between  the  contractor 
and  the  owner,  or  any  modification  "'•'  thereof  made  by  or 

92  Limited  to  contract   price: 

Lien  a*  limited  by  contract:  See  Treatise  and  Supplement,  58  459- 
468;  85  315-318. 

as  See  following:  language  in  this  section,  post:  "It  is  the  intent 
and  purpose  of  this  section  to  limit  the  owner's  liability  in  all  cases 
to  the  measure  of  the  contract  price"  when  he  shall  have  filed  bond 
with  original  contract,  etc.  See,  also,  5  14  of  the  act  of  May  1,  1911 
(Stats.  &  Am. Us.  1911,  pp.  1313  et  seq.),  post. 

04  Lien  an  limited  by  contract:  See,  generally.  Treatise  and  Supple- 
ment, §{459-468,  li  315-318,  §J  452-458. 

ee  Reasonable  value:     See  Treatise  and  Supplement,   §  456. 

0«  Price  agreed  upon:     See  Treatise  and  Supplement,  §  456. 

07  Embraced  within  or  covered: 

Nature  and  manner  of  u»e  of  material*:  See  Treatise  and  Supple- 
ment, {  87. 

How  far  •ubclalmantM  are  bound  by  term*  of  original  contract: 
See  Treatise  and  Supplement,  8  318. 

08  Original   contract! 

Definition   of  original    contract:      See  Treatise,   85  194.   211. 

General  principle*  applicable  to  building  contract*:  See  Treatise 
and  Supplement,  §§  193-215. 

Construction  of  building  contract:  See  Treatise  and  Supplement, 
55 216-228. 

Common  daune*  peculiar  to  building  contract*:  See  Treatise  and 
Supplement.  j!{  229-257. 

Plan*  and  Specification*:  See  Treatise  and  Supplement,  55  309,  310, 
and  Supplement,  $8  129a  et  seq. 

Non-ntatutory  original  contract:  See  Treatise  and  Supplement, 
Si  258-268. 

Statutory  original  contract: 

Statutory  requirement*  not  c**entlal  to  the  validity  of  the  whole 
•tatutory  original  contract:  See  Treatise  and  Supplement,  58  269-285. 

Statutory  requirement*  ennentlal  to  the  validity  of  *tatutory  origi- 
nal contract*:  See  Treatise  and  Supplement,  88  286-314. 

Effect  of  validity  or  Invalidity  of  ntatutory  original  contract  (Indi- 
rect or  direct  Hen):  See  Treatise  and  Supplement.  88  315-325. 

Extinction  of  original  contract:  See  Treatise  and  Supplement, 
89  326-360. 

00  Modification  of  original  contract:  See  Treatise  and  Supplement, 
85326-332. 

See  Index,  tit.  "Alteration,"  tit.  "Contract." 


333  APPENDIX.  §  1183  c.  C.  P. 

with  the  consent  of  such  owner,  and  of  which  such  contract, 
or  modification  thereof  the  claimant  shall  have  had  actual 
notice  10°  before  the  performance  of  such  labor  or  the  fur-  J^SJJ^11  of  1Ien 
nishing  of  such  materials.     The  filing  of  such  original  con-  JJJJJf. contract- 
tract,101  or  modification  thereof,  in  the  office  of  the  county 
recorder  of  the  county  where  the  property  is  situated,  before 
the  commencement  of  the  work,102  shall  be  equivalent  to 
the  giving  of  such  actual  notice  by  the  owner  to  all  persons 
performing  work  or  furnishing  materials  thereunder.     In 
case  said  original  contract  shall,  before  the  work  is  com- 
menced, be  so  filed,  together  with  a  bond  10:>  of  the  con-  andnbonTasact 
tractor  with  good  and  sufficient  sureties  in  an  amount  not  hmltatlon- 
less  than  fifty  (50)  per  cent  of  the  contract  price  104  named 
in  said  contract,  which  bond  shall  in  addition  to  any  con- 
ditions for  the  performance  of  the  contract,  be  also  con-  bo£iitlons 
ditioned  for  the  payment  in  full  of  the  claims  of  all  persons 
performing  labor  upon  or  furnishing  materials  to  be  used  in 
such  work,  and  shall  also  by  its  terms  be  made  to  inure  105 
to  the  benefit  of  any  and  all  persons  who  perform  labor  upon 
or  furnish  materials  to  be  used  in  the  work  described  in  said 
contract  so  as  to  give  such  persons  a  right  of  action  to  re- 
cover upon  said  bond  10(5  in  any  suit  brought  to  foreclose 

100  Notice:     See  Treatise  and  Supplement,  §  475. 

101  I'll  inn    original   contract: 

Compare  filing  of  statutory  original  contract:  Duty,  necessity  and 
object  of  filing:  See  Treatise  and  Supplement,  §§  294,  296.  See,  also, 
§§297-311. 

Time  of  filing  statutory  original  contract:  See  Treatise  and  Sup- 
plement, §  312. 

Place  of  filing  statutory  original  contract:      See  Treatise,  §  313. 

102  Before  the  commencement  of  the  work: 

As  to  statutory  original  contract:      See  Treatise,   §  312. 

103  Bond: 

Sureties,  generally:     See  Treatise  and  Supplement,   §§  605-626. 
Contractor's  bond:     See  Treatise  and  Supplement,  §§  281-285. 
Constitutionality  of  bond:      See   Treatise,    §§  39,    281. 
See  Index,   tit.   "Bond,"  tit.   "Bond   of  contractor." 

104  Contract  price:     See  Treatise  and  Supplement,  §§259-263. 
Implied  contract:     See   Treatise  and   Supplement,    §  260. 
Contract  price  computable:      See  Treatise,  §  262. 

See  Index,  tit.   "Contract  price." 

105  Inure:     See  Supplement,  §§606,  281. 

ice  Recovery  on  bond:     See  Treatise  and  Supplement,  §283. 

See  note  103,  this  section,  ante. 

Cumulative  remedies:      See  Treatise  and  Supplement,  §  688. 


§  1 183  C.  C.  P.  APPENDIX.  ;{;;4 

the  liens  10~  provided  for  in  this  chapter  or  in  a  separate 
suit  brought  on  said  bond,10*  then  the  court  must,  where 

recovery1.011  °n  ^  would  be  equitable  so  to  do,  restrict  the  recovery  under 
such  liens  to  an  aggregate  amount  equal  to  the  amount  found 
to  be  due  from  the  owner  to  the  contractor,101'  and  render 
judgment  against  the  contractor  and  his  sureties  on  said 

ment'lTgainst1*"    bond  for  any  deficiency  or  difference  there  may  remain  be- 

•uretfes.01'  and  tween  said  amount  so  found  to.be  due  to  the  contractor  and 
the  whole  amount  found  to  be  due  to  claimants  for  such  labor 
or  materials  or  both.110  No  change  or  alteration  of  the 

Sfto^rVfease  work111  or  modification  of  any  such  contract11-  between 
the  owner  and  his  contractor  shall  release  or  exonerate  any 
surety  or  sureties  upon  any  bond  given  under  this  sec- 
tion.]113 

intent  of  section.      £It  ^  ^  intent  and  purpose  of  this  section  to  limit  the 

extetnfCof1Vien.      owner's  liability,  in  all  cases,  to  the  measure  of  the  contract 

107  Action  to  foreclo*e  Hen: 

Generally!     See   Treatise   and   Supplement,    J$  638-991. 

Cumulative   remedies:     See   Treatise   and    Supplement,    §§  638-644. 

Jurisdiction  over  bondmnan  to  render  judgement:  See  Supplement, 
}  864. 

See,   generally.    Treatise  and   Supplement,   {$  638-991. 

Cumulative  remedies:     See  Treatise  and  Supplement,  Si  638-644. 

See  Index,  tit.  "Remedies,"  tit.  "Foreclosure  of  lien,"  tit.  "Bond  of 
contractor,"  and  tit.  "Bond." 

108  Separate  unit   on  bond: 

See  note  107,  this  section,  ante. 

See  Index,  tit.   "Bond,"   tit.   "Contractor's  bond." 

109  Amount    found    due   eontractori 

See,  generally,  "Indirect  lien,"  Treatise  and  Supplement,  §5  10-14. 

110  Deficiency   Judgments     See    Treatise    and    Supplement,    §{922-925. 
What    Involved,    and    what    not    Involved    on    appeal:      See    Treatise, 

5  979. 

See  Judgment  or  Decree,  generally,  Treatise  and  Supplement,  |§  903- 
934. 

See  Index,  tit.  "Deficiency  Judgment,"  tit.  "Judgment." 

111  Alteration  of  works 

See,  generally,  Treatise  and  Supplement,  §§  326-332,  and  $  247. 
See  Index,  tit.  "Alteration,"  tit.  "Architect."  tit.   "Extra   work." 

112  Modification   of  contract: 
See  note  100,  this  section,  ante. 
U3«Releatie  or  exonerate  nnrety"s 
See  note  103,  this  section,  ante. 

See,  generally,  Treatise  and  Supplement.  §J  326-332,  and  |  247. 
Cbanice*  In  contract  autborlxed  by  contract:     See  Treatise  and  Sup- 
plement, §  615. 

See  note  87,  this  section,  ante. 

See  Index,  tit.  "Sureties,"  tit.  "Contractor's  bond,"  tit.  "Bond."' 


335  APPENDIX.  §§  1183-1184  C.  C.  P. 

price  114<  where  he  shall  have  filed  or  caused  to  be  filed  in 

good  faith  with  his  original  contract  a  valid  bond  115  with 

good  and  sufficient  sureties  11(3  in  the  amount  and  upon  the 

conditions  as  herein  provided.     It  shall  be  lawful  for  the 

owner  to  protect  himself  against  any  failure  of  the  contractor  c>wner's  security. 

to  perform  his  contract  and  make  full  payment  for  all  work 

done  and  materials  furnished  thereunder  by  exacting  such 

bond  11T  or  other  security  118  as  he  may  deem  satisfactory.] 

(In  effect  sixty  days  after  May  1,  1911,  Stats.  &  Amdts.  1911, 

pp.  1313  et  seq.) 

§  1183a  was  repealed  by  Stats.  &  Aindts.  1911,  pp.  1313 
et  seq.  (In  effect  sixty  days  after  May  1,  1911). 

§  1184.  Any  of  the  persons  mentioned  in  [the  preceding  ?00twithhoilne* 
section,]  1  except  the  contractor,  may  at  any  time  give  to  wim^  ^giving. 
[the  owner  a  notice]  2  that  they  have  performed  labor  or  Contents  of  notlce- 

11*  See  note  109,  this  section,  ante. 

us  Valid   bond: 

Statutory  bonds:     See  Treatise  and  Supplement,  §§  608-612. 

Contractor's  bond:     Treatise  and  Supplement,  §§  281-235. 

See  Index,  tit.  "Bond,"  tit.  "Contractor's  bond,"  tit.  "Surety,"  and 
tit.  "Security." 

lie  Good  and  sufficient  sureties:  See  Treatise  and  Supplement,  §§  606- 
612. 

117  Such  bond: 

Statutory   bonds:      See    Treatise   and   Supplement,    §§  608-612. 

Contractor's  bond:     See   Treatise   and   Supplement,    §§  281-285. 

See  Index,  tit.  "Bond,"  tit.  "Contractor's  Bond,"  tit.  "Surety,"  and 
tit.  "Security." 

us  Other  security: 

Common  law  bond:      See  Treatise  and  Supplement,  §  613. 

Surety,  generally:     See   Treatise   and  Supplement,   §§  605-626. 

Waiver  of  lien  by  taking  additional  security:      See  Treatise  §  630. 

See  Index,  tit.  "Surety,"  tit.  "Security,"  tit.  "Bond,"  and  tit.  "Con- 
tractor's bond." 

§  1184  C.  C.  P.     i  Persons   mentioned: 

See  "Persons  entitled,"  note  3  to  §  1183,  C.  C.  P.,  ante. 

2  Notice  to  withhold:  See,  generally,  Treatise  and  Supplement, 
§§  547-571. 

Historical:      See   Treatise,    §  548. 

Statutory  provision:     See  Treatise,  §  549. 

Distinction  between  notice  to  owner  to  withhold  and  claim  of  lient 
See  Treatise,  §  550. 

Object  and  nature  of  notice:      See  Treatise,   §  550. 

Notice  to  owner  creating  personal  obligation:      See  Treatise,  §  551. 

Notice  to   owner,  garnishment:      See   Treatise,    §552. 

Provision  when  applicable:      See  Treatise,  §  553. 

Service  of  notice  on  public  trustees:  Se'e  Treatise  and  Supplement, 
i  564. 


§  1184C.C.P. 


APPENDIX. 


336 


Contents  of  notice. 


Owner   may 
demand   notice. 


Effect  of  refusal. 


Manner  of  giving 
notice. 


Defects. 


furnished  materials,  or  both,  to  the  contractor  or  other  per- 
son acting  by  the  authority  of  [the  owner,]  or  that  they 
have  agreed  to  do  so,:J  stating  4  in  general  terms  the  kind  of 
labor  and  materfals  5  and  the  name  of  the  person  to  or  for 
whom  the  same  was  done  or  furnished,  or  both,0  and  the 
amount  in  value,  as  near  as  may  be,  of  that  already  done  or 
furnished,  or  both,7  and  of  the  whole  agreed  to  be  done  or 
furnished,  or  both.8  [and  any  of  said  persons  who  shall  on 
the  written  demand  of  the  owner  refuse  to  give  such  notice 
shall  thereby  deprive  himself  of  the  right  to  claim  a  lien 
under  this  chapter].9  Such  notice  may  be  given  by  deliver- 
ing the  same  to  [said  owner]  personally,  or  by  leaving  it  at 
his  residence  or  place  of  business  with  some  person  in  charge, 
or  by  delivering  it  to  his  architect,  or  by  leaving  it  at  [the 
latter 's  office]  with  some  person  in  [charge.10  No]  such 
notice  shall  be  invalid  by  reason  of  any  defect  in  form,  pro- 
vided it  is  sufficient  to  inform  [the  owner]  of  the  substantial 


General  rljilit*  of  owner  upon  nervlce  of  notlee:  See  Treatise  and 
Supplement,  §f  554-564. 

Action  on  notice:     See  Treatise,  i  567. 

Notice,  when  held  Niifflclents     See  Treatise,  I  571. 

See  Index,  tit.  "Notice,"  tit.  "Notice  to  owner,"  tit.  "Owner,  employer 
or  person  causing  improvement." 

3  See  Treatise,  §  570. 

See  note  2,  ante,  this  section. 
See  note  4,  post,  this  section. 

4  Form  and  content*  of  notlcei     See  Treatise  and  Supplement,  ?$  568- 
671. 

Conntructlon   of   notice:     See    Treatise,    §  568. 

Effect  of  nevernl  notice*  nerved:     See  Treatise,  §  569. 

See  note  2,  ante,  this  section. 

5  Kind  of  labor  and  material*:     See  notes  2,  3  and  4,  ante,  this  sec- 
tion. 

See  Treatise,  f  570. 

6  Name  of  the  per*on: 

See  notes  2,  3,  4  and  5,  ante,  this  section. 
See  Treatise,  S  570. 

7  Amount  already  furnl*hedt 
See  notes  2-6,  ante,  this  section. 
See  Treatise,  f  570. 

8  Whole  agreed  to  be  furnl*hed: 
See  notes  2-7,  ante,  this  section. 
See  Treatise,  5  571. 

o  Forfeiture  of  lien:     See  Treatise  and  Supplement,  ii  632,  633. 
•Waiver  of  liens     See  Treatise  and  Supplement,  §5  627-631. 
See  Index,  tit.  "Forfeiture,"  tit.  "Waiver." 
10  Time  of  giving;  notice:    .See  Treatise,  {565. 


337 


APPENDIX. 


§§  1184, 1185  C.  C,  P. 


matters  herein  provided  [for.11     Upon]  such  notice  being 

given  it  shall  be  [lawful  for  the  owner  to]  withhold,12  [and  ^notice1  owner 

in  the  case  of  property  which,  for  reasons  of  public  policy  pubiic  property. 

or  otherwise,  [is]  not  subject  to  the  liens  in  this  chapter 

provided  for,13  the  owner  or  person  who  contracted  with  the 

contractor,   shall  withhold]    from   his   contractor  sufficient 

money  due  or  that  may  become  due  to  such  [contractor  to] 

answer  such  claim  and  any  lien  that  may  be  filed  [therefor 

including  the  reasonable  cost  of  any  litigation  thereunder].14 

(In  effect  sixty  days  from  and  after  May  1,  1911,  Stats.  & 

Amdts.  1911,  pp.  1313  et  seq.) 

§  1185.     The  land  J  upon  which  any  building,2  improve-  St"it°ofllilen. 
ment,3  well  4  or  structure  5  is  constructed,  together  with  a 


11  Substantial  matters:      See  Treatise  and  Supplement,   §§  547-571. 

12  Lawful  for  owner  to  withhold: 

General  rights  upon  service  of  notice  to  withhold:  See  Treatise 
and  Supplement,  §§554-564;  §514. 

Duty  to  withhold  payment:     See  Treatise,   §  525. 

See  Index,  tit.  "Notice,"  tit.  "Notice  to  owner,"  tit.  "Owner,"  tit. 
"Owner,  employer  or  person  causing  improvement." 

13  Public  property: 

Object  of  labor:    See  Treatise  and  Supplement,  §§  192,  257. 

Service  upon  public  trustees:     See  Treatise  and  Supplement,  §  564. 

Bond  of  contractor  on  public  work:  See  Treatise  and  Supplement, 
i  626. 

See  Index,  tit.  "Public  property."  tit.  "Public  trustee,"  tit.  "Public 
work." 

14  Costs  and  attorney's   fees: 

See  Treatise  and  Supplement,  §§  935-947. 

See  Index,  tit.  "Costs,"  tit.  "Attorney's  fees." 

§1185C.  C.  P.     lLand: 

Territorial  extent  of  Hen:      See  Treatise  and  Supplement,   §§  438-446. 

2  Building: 

Variable  use  of  term:     See  Treatise,  §  170,  note  9. 
See,  generally,  Treatise  and  Supplement,   §§  174,   175. 
Ditch  not  a  building:     See  Treatise,  §  177. 
Building  as  fixture:     See  Treatise,  §  186. 

See,  generally,  also,  "Object  on  which  labor  must  be  performed": 
Treatise  and  Supplement,  §§  166-192. 

Construction  of  contract  with  reference  to:     See  Treatise,  §  220. 
See  Index,  tit.   "Building." 

3  Improvement : 

Definition:      See  Treatise,   §§  141,  171. 

Distinct  from  land:     See  Treatise,  §  380,  note. 

4  Well: 

See  Treatise  and  Supplement,  §  178. 
OH  well:     See  Treatise  and  Supplement,  §  172. 
Contract  to  bore  well  holes,  construed:     See  Treatise,  §  220. 
"Water-well:     See  Treatise,   §  705. 

Appurtenances  to  well:     See  Treatise,  §  440,   note   7. 
Bloom's  Sup. — 22 


§1185C.C.P. 


APPENDIX. 


338 


Territorial  convenient  space  about  the  same,  or  so  much  as  may  be  re- 

quired for  the  convenient  use  and  occupation  thereof,6  to  be 
determined  by  the  court  on  rendering  judgment,7  is  also 
subject  to  the  lien,  if  at  the  commencement  of  the  work,  or 
of  the  furnishing  of  the  material  for  the  same,  the  land 
belonged  to  the  person  who  caused  said  building,  improve- 
ment, well  or  structure  to  be  constructed,8  altered  9  or  re- 
paired,10 but  if  such  person  owned  less  than  fee  simple  es- 

^terests°subject    tate  in  such  land,  then  only  his  interest  therein  is  subject 

to  Hen. 

See,  generally,  Treatise  and  Supplement,   §§  166-192. 

o  First  clau*e;  Structure*;  Before  amendment  of  1911:  See  Treatise 
and  Supplement,  §§  131-135. 

Importance  of  fixing  elaune  under  which  cane  fall*:  See  Treatise 
and  Supplement,  §  136. 

Structure*  In  general t     See  Treatise  and  Supplement,  |  173. 

Structures  enumerated  In  ntatutes  See  Treatise  and  Supplement, 
§  175. 

Structure*  not  enumerated  In  xtatutei  See  Treatise  and  Supplement, 
§174. 

Structure*  In  mine*:    See  Treatise  and  Supplement,  8  191. 

See  note  47,  §  1183.  , 

See  Index,  tit.   "Structure." 

o  Land  for  convenient  u*e  and  occupation;  generally i  See  Treatise 
and  Supplement,  §§  440,  441. 

Evidence  a*  to  extent  of  land  nece**arys  See  Treatise  and  Supple- 
ment, i  769. 

Finding  a*  to  land  neceMnarys      See  Treatise,  §  885,  note. 

Allegation  of  complaint  an  to  land  nece**arys      See  Treatise,  §  718. 
Decree  a*  to  land  nece**aryt     See  Treatise,  §  934. 

See  Index,  tit.  "Convenient  use  and  occupation." 

7  Judgment: 

See  Treatise,  §  934. 

Judgment,  generally*    See  Treatise  and  Supplement,  S§  903-934. 

8  Constructed: 

See,  generally,  Treatise  and  Supplement,  88  144,  145,  148. 
Con*tructlon  of  mine:     See  Treatise  and  Supplement,  §  150. 
See   "General  nature  of  labor  for  which  a  lien   is  given":   Treatise 
and  Supplement,  §§  130-165. 

9  Altered: 

Character  of  alteration:     See  Treatise  and  Supplement,   §  146. 
Distinction  between  alteration  and  repair:      See  Treatise  and  Supple- 
ment, ^  147. 

iti-i  iiK'i  itui  betvreen  alteration  and  erection:  See  Treatise  and  Sup- 
plement, §  148. 

See,  generally,  Treatise  and  Supplement,  88  144,  145. 

General  nature  of  labor  for  which  a  Hen  I*  given:  See  Treatise 
and  Supplement,  §§  130-165. 

See  notes  30,  32,  and  33,  8  1183. 

See  Index,  tit.  "Alterations." 

10  Repaired: 

Distinction  between  alteration  and  repair:     See  Treatise,  8  147. 
See,  generally,  Treatise,  §§  144  and  145. 


339  APPENDIX.          §§  H85)  1186  c.  c.  P. 

to  such  lien,11  [except  as  provided  in  section  eleven  hundred 
and  ninety -two  of  this  code].12  (In  effect  sixty  days  from 
and  after  May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.) 
§  1186.  The  liens  provided  for  in  this  chapter  are  pre- 
ferred  1  to  any  lien,  mortgage,2  or  other  encumbrance  which 

"General  nature  of  labor  for  which  a  lien  is  given":  See  Treatise 
and  Supplement,  §§  130-166. 

See  Notes  30,  31,  and  32,  §  1183,  C.  C.  P. 
11  Estates  and  interests  subject  to  lien: 

I.  By  contract: 

Generally:     See   Treatise   and   Supplement,    §§  459-468. 
General  rule:     See  Treatise,   §  461. 

Fee  or  legal  title  subject:      See  Treatise  and  Supplement,   §  462. 

Same.  Vendee  being  in  possession:  See  Treatise  and  Supplement, 
§  463. 

Same.  Lessee  being  in  possession:  See  Treatise  and  Supplement, 
§  464. 

Same.     Title  held  in  trust:     See  Treatise  and  Supplement,  §  465. 

Interest  of  vendee  in  possession  bound:  See  Treatise  and  Supple- 
ment, §  466. 

Interest  of  vendee  bound:      See   Treatise,   §  467. 

Homestead  bound:     See  Treatise  and  Supplement,  §  468. 

See  Index,  tit.  "Limitations  of  liens,"  tit.  "Estates  or  interests,"  tit., 
"Homestead." 

Estates  and  interests  subject  to  lien: 

II.  By  estoppel: 
Generally:     See  Treatise  and  Supplement,  §§  469-485. 

General  rule  as  to  when  notice  of  non-responsibility  must  be  given: 
See  Treatise  and  Supplement,  §  472. 

Purpose   of   provision:      See    Treatise,   §  474. 

Notice  or  knowledge  of  improvement:  See  Treatise  and  Supple-^ 
ment,  §  475. 

Notice  to  corporation  as  owner:     See  Treatise,   §  475. 

Lessee  in  possession  making  improvements:    See  Treatise,  §  477. 

Vendee  in  possession  making  improvements:      See  Treatise,  §  478. 

When  notice  not  required:      See  Treatise,  §  479. 

When  notice  not  required  in  case  of  mines  and  mining  claims:  See 
Treatise  and  Supplement,  §  480. 

Notice  in  case  of  grading:      See  Treatise  and  Supplement,  §  481. 

In  case  of  prior  liens:     See  Treatise,  §  482. 

Effect  of  knowledge  of  claimant  of  lack  of  authority  of  person  mak- 
ing improvement:  See  Treatise,  §  483. 

Notice,  when  to  be  posted:    See  Treatise  and  Supplement,  §  484. 

Notice,  how  posted:     See  Treatise,  §  485. 

See  note  11  to  §  1183,  C.  C.  P.,  ante,  and  notes  to  §  1192,  C.  C.  P.,  post. 

12  Notice  of  non-responsibility: 

See  note  11,  §1185,  C.  C.  P.,  ante;  and  see  notes  to  §  1192,  C.  C.  P., 
post. 

§  1186  C.  C.  P.  i  Priorities;  generally:  See  Treatise  and  Supple- 
ment, §§486-507. 

See  notes  to  §  1188,  C.  C.  P.,  post. 

Priorities  between  mechanics'  liens  and  other  estates  and  interests, 
or  other  classes  of  liens:  See  Treatise  and  Supplement,  §§  487-503. 


§§1186,  1187  C.  C.  P.  340 

mav  have  attacned  subsequent  to  the  time  when  the  build- 
'ng'  imProvement,  or  structure  was  commenced,  work  done, 
or  materials  were^  commenced  to  be  furnished  ;3  also,  to  any 
lien,  mortgage,  or  other  encumbrance  of  which  the  lien- 
holder  had  no  notice,4  and  which  was  unrecorded  at  the 
time  the  building,  improvement,  or  structure  was  commenced, 
work  done,  or  the  materials  were  commenced  to  be  furnished. 
(Enacted  March  11,  1872.) 

^f liienwhlch  §  1187-  Every  original  contractor.1  [claiming  the  benefit 
of  this  chapter,]  within  [sixty  days]  after  the  completion  of 
his  [contract,  and]  every  person  save  the  original  contractor 
claiming  the  benefit  of  this  chapter,  [within  thirty  days 
after  he  has  ceased  to  labor  or  has  ceased  to  furnish  ma- 
terials, or  both;  or  at  his  option,  within  thirty  days  after 
the  completion  of  the  original  contract, !  if  any,  under 

Statutory  ntatement  of  rule:     See  Treatise,  §  488. 

General  :m:il>sis  of  provision:     See  Treatise,  ?  489. 

Grant*  and  conveyance**     See  Treatise,  5  490. 

General  rule  an  to  priorities*    See  Treatise,  |  495. 

Priorities  Inter  *e«e:    See  Treatise  and  Supplement,  §?  504-507. 

See  Index,  tit.  "Priorities,"  tit.  "Mortgage." 

2  Mortgage: 

Mortgage  for  purchase  prlcet     See  Treatise,  §  496. 
Mortgage  for  future  advancent     See  Treatise,  5  497. 
What   conntltute*   further   advances:      See   Treatise,   §  499. 
When    lien    claimant*    may    attack    prior    encumbrance*:      See    Trea- 
tise, §  500. 

See   Index,   tit.    "Priorities,"    tit.    "Mortgage." 

3  Doctrine  of   relation:     See   Treatise,    $491. 
See  Index,  tit.   "Relation." 

'         «  See  Treatise,  §  490. 

JI187C.  C.  P.  i  Contractor:  Constitutional  and  leglnlatlve  clarifi- 
cation*! See  Treatise  and  Supplement,  SS  28  and  42. 

Definition  of  original  contractor:  See  Treatise  and  Supplement, 
J45. 

Tent*  or  original  contractor:     See  Treatise  and  Supplement,  §|  46-59. 

Dl*tlnctlon  between  original  contractor  and  material-man:  See 
Treatise  and  Supplement,  if  60,  77,  79  and  80. 

General  right*  of  original  contractor:     See  Treatise  and  Supplement, 

§§  ei-63. 

General  obligation*  of  original  contractor*:  See  Treatise  and  Sup- 
plement, {{  64,  65. 

See  Index,  tit.  "Original  contractor." 

2  Time  of  filing  claim  of  lien:     See,  generally,  Treatise  and  Supple- 
ment.   55  422-437. 

See  Index,  tit.  "Claim  of  Hen,"  tit.   "Time." 

3  Original   contract! 

Completion  of  contract;  *ub*tantlal  and  actual  completion:  See 
Treatise  and  Supplement,  8  431. 


341  APPENDIX.  §  1187;  C    C    p 


which  he  was  employed,]  must  file  for  record  with  the  county  Place  of 
recorder  of  the  county  or  city  and  county  4  in  which  such 
property  or  some  part  thereof  is  situated  a  claim  of  lien  5 
containing  a  statement  of  his  demand  after  deducting  all  ciaimnts  °f 
just  credits  and  offsets,6  with  the  name  of  the  owner  or 
reputed  owner,7  if  known,  also  the  name  of  the  person  by 
whom  he  was  employed,8  or  to  whom  he  furnished  the  ma- 
terials,9 with  a  statement  of  the  10  [price  if  any  agreed  upon 
for  the  same  and  when  payable,11  and  of  the  work  agreed 
to  be  done  and  when  the  same  was  to  be  done,  if  agreed 
upon,]  12  and  also  a  description  of  the  property  to  be  charged 
with  the  lien,  sufficient  for  identification,13  which  claim  must 

Performance  of  contract:     See  Treatise   and  Supplement,    §§  334-347. 
Statutory  equivalents  of  completion  for  the  purpose  of  filing;  claims 
of  lien:     See  Treatise  and  Supplement,  §§  348-357. 
Original  contract;  definition:    See  Treatise,   §  211. 
See  Index,  tit.   "Performance,"   tit.    "Performance   of   contract." 

4  Place  of  filing  claim  of  lien   for  record:     See  Treatise,    §  420. 
See  Index,  tit.  "Claim  of  lien." 

5  Claim  of  lien: 

Nature,  necessity,  purpose:    See  Treatise  and  Supplement,  §§  361-367. 
Contents,  generally:     See   Treatise  and   Supplement,    §§  370-415. 
See  Index,   tit.   "Claim  of  lien." 

6  Statement  of  demand  after   deducting  all  just   credits  and  offsets: 
See   Treatise   and   Supplement,   §§  375-378. 

Object   of  provision:      See   Treatise   and  Supplement,    §  376. 
Demands   against   two   or   more   buildings:      See    Treatise,    §  378,   and 
see  §  1188,  C.  C.  P.,  post,  and  notes. 
See  Index,  tit.   "Statement." 

7  Name  of  owner  or  reputed  owner:     See  Treatise   and  Supplement, 
§§  380-386. 

See   Index,    tit.    "Claim    of   lien,"   tit.    "Name    of   owner,"    tit.    "Names 
required  to  be  stated  in  claim  of  lien." 

8  Name  of  employer:     See   Treatise,   §  381.' 

9  Purchaser:     See  Treatise,  §  381. 

See  Index,  tit.   "Claim  of  lien,"  tit.   "Names  required  to  be  stated  in 
claim  of  lien." 

10  Statement  of  price:     Compare  "Terms,  time  given  and  conditions 
of  contract":    Treatise  and  Supplement,   §§387-398. 

"Price,"  "Value":     See  Treatise,   §  456. 

See  Index,   tit.   "Claim   of  lien,"  tit.   "Price." 

11  See    "Terms,    time    given    and    conditions    of    contract,"    Treatise 
and  Supplement,   §§  387-398. 

12  See  "Terms,  time  given  and  conditions  of  contract,"  Treatise  and 
Supplement,  §§  387-398. 

Nature  of  labor:    See  Treatise  and  Supplement,  §§  130-165. 

is  Description  of  property:     See  Treatise  and  Supplement,  §§  399-407. 

Object  of  provision:      See  Treatise,  §  401. 

General  rule:     See  Treatise,  §  402. 

Special  applications;  false  calls:     See  Treatise  and  Supplement,  §  403. 


§1187C.  C.P. 


APPENDIX. 


Verification    of 

claim. 

What  deemed 

completion. 


be  verified  by  the  oath  of  himself  or  of  some  other  [person.14 
Any]  trivial  imperfection  ir>  in  the  said  work,  or  in  the  [com- 
pletion of  any  contract  by  any  lien  claimant,  or  in  the]  con- 
st ruction  of  any  building,  improvement  or  structure,16  or  of 
the  alteration,  addition  to,  or  repair  thereof,17  shall  not  be 


Property   Identified   by   name  or  exelimlve   character:     See   Treatise, 

i  404. 

lii-si-ri|itiiiii  IIH  Including;  too  much  or  too  little:    See  Treatise,  {405. 

Two    or    more    deMcrlptlonii:     See    Treatise,    §406.      And    see    $1188, 
C.  C.  P.,  post,  and  notes. 

Application  of  provision   an   to   demand*   against   separate   building"' 
See  Treatise,  §  407.     And  see  {  1189,  C.  C.  P.,  post,  and  notes. 

See   Index,  tit.   "Description." 

14  Verification:     See  Treatise  and  Supplement,  {  410. 

is  Trifling  Imperfection!     See   Treatise  and   Supplement,    {341. 

s  ii  list  initial  performance:     See  Treatise  and  Supplement,  §|  342,   431. 

General   principles:     See    Treatise   and    Supplement,    §  343. 

Slight   difference  In  value:     See  Treatise  and  Supplement,   $  344. 

Conveniences:      See   Treatise   and   Supplement,   i  345. 

Abandonment:     See  Treatise  and  Supplement,   $$  358-360. 

Performance   of  contract,  generally:     See   Treatise  and   Supplement, 
Si  334-360. 

Itnililiiiu.  Improvement   or  Mtructure: 

Ilulldlng;  variable  line  of  term:     See  Treatise,   $  170,  note  9. 

See,   generally.   Treatise  and  Supplement,   8§  174   and   175. 

Hitch  not  a  building:     See  Treatise,  $  177. 

Building  an   fixture:     See   Treatise,   $  186. 

See,   generally,   also,   "Object   on    which   labor   must    be   performed." 
Treatise  and  Supplement,  $f  166-192. 

ConNtructlon   of  contract  with  reference  to:     See   Treatise,    $  220. 

See  Index,   tit.    "Building." 

Improvement:     See  §  1185,  C.  C.  P.,  note  3,  ante. 

17  Alteration: 

Character  of  alteration:     See  Treatise  and  Supplement,   §  146. 

DlNtlnctlon   between   alteration   and   repair:     See   Treatise   and    Sup- 
plement,  $  147. 

Distinction  between  alteration  and  erection:     See  Treatise  and  Sup- 
plement, f  148. 

See,  generally,  Treatise  and  Supplement,  fit  144,  145. 

General    nature   of   labor   for    which   a    lien    IN    given:     See    Treatise 
and  Supplement,   §§  130-165. 

See  notes  30,  32,  and  33,  {  1183,  C.  C.  P.,  ante. 

See   Index,    tit.    "Alterations." 

Addition  to:     See  Treatise  and  Supplement,  $  144. 

Construction  of  contracts  as  to  "addition":     See  Treatise  and   Sup- 
plement, }  220. 

See  notes  30,  31,  and  33,  $  1183,  C.  C.  P.,  ante. 

Repair: 

Distinction  between   alteration   and  repair:     See   Treatise,   {  147. 

See,  generally.  Treatise,  §§  144  and   145. 

General    nature    of    labor    for    which    a    lien    Is    given:      See    Treatise 
and  Supplement.  fS  130-166. 

See  notes  30,  31,  and  32,  $  1183,  C.  C.  P.,  ante. 


343 


APPENDIX. 


1187 


P. 


deemed  such  a  lack  of  completion  as  to  prevent  the  filing  of 

any  lien;  and,  in  all  cases,  [any  of  the  following  shall  be 

deemed  equivalent  to  a  completion  for  all  the  purposes  of  ^^p^tfon8  °f 

this  chapter:]  the  occupation  or  use  of  a  building,  improve- 

ment, or  structure,  by  the  owner,  or  his  representative;18 

or  the  acceptance  by  said  owner  or  said  agent,  of  said  build- 

ing, improvement,  or  structure,19  [or]  cessation  from  labor 

for  thirty  days  upon  any  contract  or  upon  any  building,  im- 

provement or  structure  or  the  alteration,   addition  to,   or 

repair  [thereof;20  the  filing  of  the  notice  hereinafter  pro- 

vided for].21 

The  [owner  may]  within  ten  days  [after  completion]  of  notice°offllins 


[any  contract]  22  or  within  forty  days  after  cessation  from 

labor  [thereon,]  23  file  for  record  in  the  office  of  the  county  labor-  by  owner- 

recorder  of  the  [county  where  the  property]  is  situated,24 


is  Occupation  or  use  of  building: 

Statutory  equivalents  of  completion,  generally:  See  Treatise  and 
Supplement,  §§  348-357. 

Scope  and  object  of  provision:      See   Treatise,  §  350. 
Character  of  occupation  or  use:      See  Treatise,  §  351. 
Acceptance;  waiver:     See  Treatise  and  Supplement,   §  353. 

19  Acceptance  of  building,  improvement  or  structure:     See  preceding 
note. 

20  Cessation  from  labor: 

Statutory  equivalents  of  completion;  generally:  See  Treatise  and 
Supplement,  §§  348-357. 

Cessation  from  labor  for  thirty  days:  See  Treatise  and  Supplement, 
§  354. 

Scope  of  provision:      See   Treatise,   §  355. 

Character  of  cessation:     See  Treatise,  §  356. 

1  Notice  of  completion  or  cessation  from  labor;  generally:  See 
Treatise  and  Supplement,  §§  425-429. 

Purpose   and  scope   of  provision:      See   Treatise,   §  426. 

Failure  of  owner  to  file  notice:      See  Treatise  and  Supplement,  §  427. 

In  case  of  structures:     See  Treatise,    §  428. 

General  rule:     See   Treatise,   §  429. 

22  Completion  of  contract: 

Building  contracts;  generally:  See  Treatise  and  Supplement,  §§  193- 
360. 

Performance  of  contract:     See   Treatise  and  Supplement,   §§  334-347. 
See  note  21  to  §  1187,  C.  C.  P.,  ante. 

23  Cessation    of    labor;    generally:       See    Treatise    and    Supplement, 
§§  354-357.     See  note  21  to   §  1187,  C.  C.  P.,  ante. 

24  Compare    "Place    of    filing   claim    of    lien":     Treatise    and    Supple- 
ment,  §  420. 

Filing  notice  of  completion  or  cessation:  See  Treatise  and  Supple- 
ment, §§  425-429. 

See  note  21  to  §  1187,  C.  C.  P.,  ante. 


§§1187, 1188  C.C.  P.         APPENDIX. 


344 


Contents   of 
notice    of 
completion  or 
cessation. 


Pee  for  recording:. 


Failure  to  file 
notice,   estoppel. 


Claims  against 
two  or  more 
properties. 


a  notice  setting  forth  the  date  when  [the  same  was  com- 
pleted,] or  [on  which]  cessation  from  [labor  occurred,-"' 
together  with  his  name  and  the  nature  of  his  title,  and]  a 
description  of  the  property  sufficient  for  identification,20 
which  notice  shall  be  verified  by  [himself]  or  some  other 
person  on  his  behalf.27  [The  fee  for  recording  the  same  shall 
be  one  dollar.]  In  case  [such  notice  be  not  so  filed]  then  the 
said  owner  and  all  persons  deraigning  title  from  or  claiming 
[any  interest  through]  him  shall  be  estopped28  in  any  pro- 
ceedings [for  the  foreclosure  of  any  lien  provided]  for  in 
this  chapter  from  maintaining  any  defense  therein  based  on 
the  ground  that  said  [lien  was  not]  filed  within  the  time 
provided  in  this  chapter  ;2f>  [provided,  that  all  claims  of  lien 
must  be  filed  within  ninety  days  after  the  completion  of  any 
building,  improvement  or  structure, :JO  or  the  alteration,  ad- 
dition or  repair  thereto].31  (In  effect  sixty  days  after  May 
1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.) 

§  1188.  In  every  case  in  which  one  claim  is  filed  against 
two  or  more  buildings,  mining  claims,  or  other  improvements 
owned  by  the  same  person,  the  person  filing  such  claim  must 
at  the  same  time  designate  the  amount  due  to  him  on  each 
of  such  buildings,  mining  claims,  or  other  improvements;1 
otherwise,  the  lien  of  such  claim  is  postponed  to  other  liens.2 


25  Notice  of  completion  or  cessation:  See  Treatise  and  Supplement, 
{§425-428. 

See  note  21  to  §  1187,  C.  C.  P.,  ante. 

20  Description  of  property  sufficient  for  Identification:  See  Treatise 
and  Supplement,  §!  369-407. 

See  note  21  to  §  1187,  C.  C.  P.,  ante. 

27  Verification:     See   Treatise  and   Supplement,   §410. 

28  Estoppel:     See  Treatise  and  Supplement,  §§469-471. 
See  note  21  to  §  1187,  C.  C.  P.,  ante. 

See  Index,  tit.   "Estoppel." 

20  Failure  of  owner  to  file  notice:  See  Treatise  and  Supplement, 
I  427. 

See  note  21  to  §  1187,  C.  C.  P.,  ante. 

30  Building,    Improvement    or    ntructnre: 

See  note  16,  this  section,  ante. 

si  See  note  17,  this  section,  ante. 

f  1188  C.  C.  P.      1  Building;*,   mining:  claims   or   other   Improvement*!: 

Object  on  which  labor  must  be  done;  generally:  gee  Treatise  and 
Supplement,  §§  166-192. 

2  Claim  against  two  or  more  buildings;  generally:  See  Treatise  and 
Supplement,  §  502. 

When   provision   applicable:     See    Treatise,    §  503. 


345 


APPENDIX. 


§§1188-11900.  C.  P. 


The  lien  of  such  claimant  does  not  extend  beyond  the  amount  Priorities, 
designated,  as  against  other  creditors  having  liens,  by  judg- 
ment, mortgage,  or  otherwise,  upon  either  of  such  buildings 
or  other  improvements,  or  upon  the  land  upon  which  the 
same  are  situated.3     (Enacted  March  11,  1872.) 

§  1189.     The  recorder  must  record  the  claim  in  a  book  Recording  claim, 
kept  by  him  for  that  purpose,1  which  record  must  be  in- 
dexed as  deeds  and  other  conveyances  are  required  by  law 
to  be  indexed,  and  for  which  he  may  receive  the  same  fees  FeesfInS' 
as  are  allowed  by  law  for  recording  deeds  and  other  instru- 
ments.2    (Enacted  March  11,  1872.) 

§  1190.     No  lien  provided  for  in  this  chapter  binds  any  Limitation  on  lien. 
[property]  for  a  longer  period  than  ninety  days  after  the 
same  has  been  filed,1  unless  proceedings  be  commenced  in  a  m^cing  action 
proper  court  within  that  time  to  enforce  the  same  ;2  or,  if  a  to  foreclose- 


Claim     against     two     or     more     buildings     or     mining     claims:      See 

Treatise  and  Supplement,   §§  378,   406. 

Distinct  objects  on  one  parcel  of  land:      See  Treatise,   §  448. 

Necessity  of  one  or  more  claims  of  Hen:      See  Treatise,  §  366. 

Claim  against  several  objects  and  pieces  of  property:  See  Treatise, 
!  368. 

Priorities  inter  sese:     See   Treatise  and   Supplement,    §§504-507. 

3  See  note  1,  this  section,  ante. 

Priorities,  generally:     See   Treatise  and   Supplement,    §§  486-507. 

§  1189  C.  C.  P.  i  Recording  claim  of  lien:  See  Treatise  and  Supple- 
ment, §  365. 

Purpose  of  filing  claim  within  a  certain  time:  See  Treatise  and 
Supplement,  §§  418,  419. 

Place  of  filing  claim  for  record:      See  Treatise,  §  420. 

Removal  of  claim  from  recorder's  office:      See  Treatise,  §  420. 

Recorder's  endorsement  of  filing  prima  facie  evidence:  See  Trea- 
tise, §  795. 

2  Indexing  claim  of  lien:     See  Index  Supplement,  tit.  "Index." 

§  1190  C.  C.  P.  i  Time  of  commencing  action  to  foreclose:  See  Trea- 
tise and  Supplement,  §§  649,  650. 

General  rule:     See  Treatise,  §  649. 

Amending  complaint;  doctrine  of  relation:      See  Treatise,   §  649. 

Debt  must  be  payable:     See  Treatise,   §  649. 

Credit  given:     See  Treatise,  §  649. 

Action  to   foreclose  Hen  upon   fund:      See   Treatise,   §  650. 

See  Index,  tit.  "Time,"  tit.  "Time,  place  and  manner  of  commencing 
action  to  foreclose  lien." 

2  Place  of  commencing  action  to  foreclose:  See  Treatise  and  Sup- 
plement, §§  651-655. 

Generally:     See   Treatise  and   Supplement,   §  651. 

Jurisdiction  of  the  Superior  Court:  See  Treatise  and  Supplement, 
§  653. 

Amount  less  than  jurisdictlonal  amount:  See  Treatise  and  Supple- 
ment, §  654. 

Foreclosure  in  Federal  Courts:     See  Treatise  and  Supplement,  §  655. 


§§  1190.  1  191  (.'.  (.'.  P.  APPENDIX. 


346 


Time   of   com- 
mencing   action 
to  foreclose. 


Dismissal  for 
want  of 
prosecution. 


Lien  for  grading, 
or  improving  lot, 
sidewalk  or  street. 


credit  be  given,  then  nim-ty  .lays  nl'trr  the  expiration  of  sm-li 
credit ;  3  but  no  lien  continues  in  force  for  a  longer  time 
than  [one  year]  from  the  time  the  work  is  completed,  by  any 
agreement  to  give  credit,  [and  in  case  such  proceedings  be 
not  prosecuted  to  trial  within  two  years  after  the  commence- 
ment thereof,  the  court  may  in  its  discretion  dismiss  the 
same  for  want  of  prosecution,  and  in  all  cases  the  dismissal 
of  such  action  (unless  it  be  expressly  stated  that  the  same  is 
without  prejudice)  or  a  judgment  rendered  therein  that  no 
lien  exists,  shall  be  equivalent  to  the  cancellation  and  re- 
moval from  the  record  of  such  lien].  (In  effect  sixty  days 
from  and  after  May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313 
et  seq.) 

§  1191.  Any  person  who,  at  the  request  of  the  reputed 
owner  1  of  any  lot  in  any  incorporated  city  or  town,2  grades, 
fills  in,  or  otherwise  improves  the  same,3  or  the  street  or 
sidewalk  in  front  of  or  adjoining  the  same,4  or  constructs 
any  areas  or  vaults,  or  cellars,  or  rooms,  under  said  side- 
walks, or  makes  any  improvements  in  connection  therewith  5 
has  a  lien  upon  said  lot  for  his  work  done  and  materials 


3  Giving  credltt     See  Treatise,  S  649. 

4  Release  of  Hen:     See   Treatise  and  Supplement,   US  634-637. 
Decree,vgenerally:    See  Treatise  and  Supplement,   §i  903-934. 
§  1191C.  C.  P.      1  Request  of  reputed  owner: 

Owner  and  reputed  owner:     See  Treatise,   §  509. 
Power  of  reputed  owner;  estoppels     See   Treatise,   $  34. 
Lien  Imponed  by  merely  reputed  owner,  unconstitutional:    See  Trea- 
tise, $  34. 

See  Index,  tit.   "Street  work,"   tit.   "Street   improvement." 

2  Definition  of  "lot":     See  Treatise  and  Supplement,  J  184,  notes. 
Object  on  which  labor  must   be  performed:     See  Treatise  and  Sup- 
plement,  $  184. 

3  Improve;   meaning  of  term:     See   Treatise  and   Supplement,    §§  141, 
142.   156,   158,  and  437. 

See  note  5,  this  section. 

4  Sidewalk:     See   Treatise   and   Supplement,   $  184. 
System  of  sewers:     See  Treatise,  $  184. 

Extent  of  Hen  on  "lot":     See  Treatise,  §  446. 

5  Improvement  In  connection  therewith: 
Improvements:     See    Treatise,    $  158. 
"Therewith":     See    Treatise,    {  159. 

Work  not  under  this  section:     See  Treatise,  I  157. 
As  to  Hen  of  material-man:     See  Treatise,  §  97. 
See  note   3,  this  section. 


347  APPENDIX.  §§1191-11920.  C.  P. 

furnished.6     (Amended   March    15,    1887,    Stats.    &   Amdts. 
1886-7,  p.  155.) 

§  1191a.  Any  health  officer  or  governing  board  of  any 
city,  town  or  sanitary  district,  having  served  written  notice 
upon  the  owner  or  reputed  owner  l  of  real  estate  upon  which 
there  is  a  dwelling  house,  and  such  owner  or  reputed  owner, 
after  thirty  days,  having  refused,  neglected  or  failed  to 
connect  such  dwelling  house,  together  with  all  toilets,  sinks 
and  other  plumbing  therein,  properly  vented,  and  in  a  sani- 
tary manner,  with  the  adjoining  street  sewer,  may  construct  [^dwelling- e° 
the  same  at  a  reasonable  cost,  and  the  person  doing  said  house  with  s«^e 
work  at  the  request  of  such  health  officer  or  governing  board, 
has  a  lien  upon  said  real  estate  for  his  work  done  and  ma- 
terials furnished,2  and  such  work  done  and  materials  fur- 
nished shall  be  held  to  have  been  done  and  furnished  at  the 
instance  of  such  owner  or  reputed  owner,  or  person  claiming 
or  having  any  interest  therein.  (In  effect  sixty  days  from 
and  after  April  19,  1909,  Stats.  1909,  chap.  653.) 

§  1192.  Every  building  or  other  improvement  *  [or  work] 
mentioned  in  [any  of  the  preceding  sections  of  this  chapter] 

6  Grading  and  other  work  under  this  section,  generally:  See  Trea- 
tise and  Supplement,  §§  139-142,  §§  156-160. 

Extent  of  Hen:      See   Treatise,   §  446. 

Relation  to  work  on  "structures":      See  Treatise,  §  159. 

§  1191  a  C.  C.  P.  i  Owner,  generally:  See  Treatise  and  Supplement, 
§§  508-571. 

General  rights  of  owner  and  employer:  See  Treatise  and  Supple- 
ment, §§  510-522. 

General  obligations  of  owner:     See  Treatise,   §§  523-546. 

Owner  and  reputed  owner:      See  Treatise  and  Supplement,  §  509. 

Liability  of  owner  upon  statutory  notice  to  withhold:  See  Treatise 
and  Supplement,  §§  547-571. 

See  Index,  tit.  "Exhastive,"  tit.  "Owner,"  tit.  "Owner,  Employer  or 
Person  causing  improvement." 

2  Labor  for  which  a  lien  is  given:  See  Treatise  and  Supplement, 
§§ 130-165. 

Materials:  Distinction  between  labor  contract  and  contract  for 
material:  See  Treatise  and  Supplement,  §§  59,  80,  and  83. 

Nature  of  materials,  when  lien  allowed  and  when  not:  See,  gen- 
erally, Treatise  and  Supplement,  §§  87-91. 

Package  of  material:     See  Treatise  and  Supplement,  §  90. 

Carriage  charges:     See  Treatise  and  Supplement,  §  91. 

See  Index,   tit.   "Materials,"   tit.   "Material-man." 

§  1192  C.  C.  P.  i  Building  or  improvement;  variable  use  of  terms: 
See  Treatise  §  170,  note  9,  §§  141,  158,  171. 

See  generally  Treatise  and   Supplement,   §§  174   and   175! 

Ditch  not  a  building:    See  Treatise,  §  177. 


§  1192C.  ('.  P. 


APPKNI.IX 


348 


constructed,  [altered  or  repaired]  -  upon  any  land  with  the 
u>r a8gency°fora*  knowledge  of  the  owner  3  or  [of  any]  person  having  or  claim- 
owner,  ing  any  [estate]-  therein,4  and  the  work  or  [labor  done  or] 


KiiililiiiK    as   fixtures      See    Treatise,    $  186. 

See    generally    also    "Object    on    which    labor    must    be    performed," 
Treatise  and  Supplement,  {{  166-192. 

Count  ruction  of  contract,  with  reference  tot     See  Treatise,  I  220. 

See  Index,  tu.  "Building1";  tit.  "Improvement." 

2  Conntructloni     See,  generally,  Treatise  and  Supplement,  SS  144  and 
145,  and   {  148. 

Construction  of  mine:     See   Treatise  and  Supplement,   f  150. 

General    nature   of   labor   for    which    a    Hen    In   given >      See    Treatise 
and    Supplement,    §§  130-165. 

Alteration!     Character     of     alteration*     See    Treatise    and    Supple- 
ment,  {  146. 

Dlittlnctlon   between   alteration   anil   repairs      See   Treatise   and   Sup- 
plement,   i  147. 

i)i-i  inci  inn  between  alteration  and  erection!     See  Treatise  and  Sup- 
plement,   S  148. 

See,  generally,  Treatise  and  Supplement,  §8  144,  145. 

General    nature    of   labor    for    which    a    lien    In    given!      See    Treatise 
and   Supplement,   f$  130-165. 

See  notes  30,  32  and  33,  $  1183. 

See    Index,    tit.     "Alterations";    tit.     "Construction,    alteration    and 
repair." 

Repair!      Distinction    between    alteration    and    repairs      See    Treatise 
1147. 

See,  generally.  Treatise,  §$  144  and  145. 

General    nature   of   labor    for   which   a    Hen    In    given !     See    Treatise 
and   Supplement,    §§  130-166. 

See  notes  30,  31  and  32,  §  1183,  C.  C.  P. 

Owner!     See  generally.  Treatise  and  Supplement,  i§  508-571. 

General    riul>(-   of  owner   and   employers    See   Treatise   and    Supple- 
ment,  fi  510-522. 

General  obligation  of  owners    See  Treatise,  if  523-546. 

Owner  anil  reputed  owner!    See  Treatise  and  Supplement,  f  509. 

Liability  of  owner  upon  statutory  notice  to  withhold!     See  Treatise 
and  Supplement,  {§  547-571. 

See   Index,    tit.    "Owner";   tit.    "Owner,   Emloyer   or   Person    causing 
improvement." 

<  Estates  and   Interest*   subject  to   Hen! 

I.      By  Contract! 

Generally!     See   Treatise   and   Supplement,    !S  459-468. 

General  rules    See  Treatise,  f  461. 

Fee  or  legal  title  subjects    See  Treatise  and  Supplement,  |  462. 

Snme.     Vendee    being    In    possessions     See    Treatise   and    Supplement, 
{  463. 

Same.     Lessee   being   In    possession:      See   Treatise   and    Supplement, 
S  464. 

Same.     Title  held  In  trust!     See  Treatise  and  Supplement,   {  465. 

Interest   of  vendee   In   possession   bounds    See   Treatise  and   Supple- 
ment, §  466. 

Interest  of  vendee  bound!     See  Treatise,   $  467. 

Homestead  bound <     See  Treatise  and  Supplement,   !  468. 


349 


APPENDIX. 


§1192C.  C.P. 


materials  furnished  mentioned  in  [any  of]  said  [sections  3 
with]  the  knowledge  of  the  owner  or  persons  having  or 
claiming  any  [estate  in  the  land,]  shall  be  held  to  have  been 
constructed,  performed  or  furnished  at  the  instance  of  such 
owner  or  person  having  or  claiming  any  [estate]  therein, 
and  [such]  interest  owned  or  claimed  shall  be  subject  to  any 
lien  filed  in  accordance  with  the  provisions  of  this  chapter,6 
unless  such  owner  or  person  having  or  claiming  any  [estate] 
therein  shall,  within  ten  days  after  he  shall  have  obtained 

See  Index,  tit.  "Limitations  of  liens,"  tit.   "Estates  or  interests,"  tit. 
"Homestead." 

Estates  and  interests  subject   to  lien: 

II.     By  Estoppel: 

Generally:    See  Treatise  and  Supplement,   §§  469-485. 

General  rule  as  to  when  notice  of  non-responsibility  innst  be  give*: 
See  Treatise  and  Supplement,  §  472. 

Purpose  of  provision:     See  Treatise,  §  474. 

Notice    or    knowledge    of    improvement:      See    Treatise    and    Supple- 
ment,   §  475. 

Notice  to  corporation  as  owner:     See  Treatise,  §  475. 

Lessee  in  possession  making  Improvements:     See  Treatise,   §  477. 

Vendee  in  possession  making  improvements:    See  Treatise,  §  478. 

When  notice  not  required:    See  Treatise,  §  479. 

When    notice    not    required    in    case    of    mines    and    mining    claims: 
See  Treatise  and  Supplement,  §  480. 

Notice  in  case  of  grading:    See  Treatise  and  Supplement,   §  481. 

In  case  of  prior  liens:    See  Treatise,  §  482. 

Effect    of    knowledge    of    claimant    of    lack    of    authority    of    person 
making  improvement:    See  Treatise,   §  483. 

Notice,  when  to  be  posted:    See  Treatise  and  Supplement,  §  484. 

Notice,  how  posted:    See  Treatise,  |  485. 

See  note  11  to  §§  1183,  C.  C.  P.,  ante. 

5  Labor  for  which  a  lien  is  given;  generally:    See  Treatise  and  Sup- 
plement,  §§ 166-192. 

Materials:      Distinction    between    labor    contract    and    contract    for 
material:     See  Treatise  and  Supplement,  §§  59,  80  and  83. 

Nature   of   materials,   when   lien    allowed   and   when    not:      See,    gen- 
erally, Treatise  and  Supplement,  §§  87-91. 

Package  of  material:     See  Treatise  and  Supplement,  §  90. 

Carriage  charges:    See  Treatise  and  Supplement,   §  91. 

See  Index,  tit.  "Materials,"  tit.  "Material-man." 

Use   of  materials;   contract   for   use   of   materials:     See   Treatise   and 
Supplement,  §  82. 

General  essentials:    See  Treatise  and  Supplement,   §  86. 

Nature   and  manner  of  use   of  materials:    See   Treatise   and   Supple- 
ment,   §  87. 

Materials,  how  used:    See  Treatise  and  Supplement,  §  89. 

See  Index,  tit.  "Materials,"  tit.  "Material-man,"  and  tit.  "Use  of  ma- 
terials." 

e  See  note  4,  this  section,  ante. 


Presumption    as 
to  agency  for 
owner. 


Duty   of   owner 
to  post  and  record 
notice  of  non- 
responsibility   on 
obtaining 
knowledge 
of  work. 


^  1 192, 1193  C.  C.  P.         APPENDIX. 


Notice   of   non- 
responsibility. 


Contents  of 
notice. 


Verification. 


Recovery   on 
contractor's    lien. 


knowledge  of  such  construction,  alteration  or  repair "  or 
work  or  labor,  give  notice  that  he  will  not  be  responsible 
for  the  same  8  by  posting  a  notice  in  writing  to  that  effect 
in  some  conspicuous  place  upon  tin*  [property, '•'  and  shall 
also,  within  the  same  period,  file  for  record  a  verified]10 
copy  of  [said]  notice  in  the  office  of  the  county  recorder  of 
the  [said  county  in  which  said  property  or  some  part  thereof 
is  situated].  [Said  notice  shall  contain  a  description  of  the 
property  affected  thereby  sufficient  for  identification, l '  with 
the  name,1-  and  the  nature  of  the  title  or  interest  of  the  per- 
son giving  the  same,  said  copy  so  recorded  may  be  verified 
by  anyone  having  a  knowledge  of  the  facts,  on  behalf  of  the 
owner  or  person  for  whose  protection  the  notice  is  given.] 
(In  effect  sixty  days  from  and  after  May  1,  1911.  Stats.  & 
Amdts.  1911,  pp.  1313  et  seq.) 

§1193.  [Any]  contractor1  shall  be  entitled  to  recover, 
upon  a  lien  filed  by  him,  only  such  amount  as  may  be  due  to 
him  according  to  the  terms  of  his  contract,2  after  deducting 


7  See  note  2,  this  section,  ante. 

8  See  note  4,  this  section,  ante. 

o  Property;  <ll*t  !iiKiil*lie<l  front  object  of  labori  See  Treatise  and 
Supplement,  |i  166,  167. 

Description  of  property  In  claims  See  Treatise  and  Supplement, 
§| 399-407. 

Territorial  extent  of  Hens    See  Treatise  and  Supplement,  i$  438-451. 

EMtaten  and  Interests  nubject  to  Hens  See  Treatise  and  Supplement, 
f§  459-485. 

See  Index,  tit.  "Property,"  tit.  "Description  of  property  to  be 
charged." 

10  Verification:    See  Treatise  and  Supplement,  §410. 

11  Dencrlptlon  of  property:    See  Treatise  and  Supplement,  {§  399-407. 
NJIIIH-H  In  claim:   Compare  Treatise  and  Supplement,  $§  379-386. 

§1193C.  C.  P.  i  Contractor:  Constitutional  and  IcglNlative  clawMlfl- 
catlonss  See  Treatise  and  Supplement,  §§  28  and  42. 

Definition  of  orliclnnl  contractor:    See  Treatise  and  Supplement,  §  45. 

TeatM  of  orlKlnal  contractor:     See  Treatise  and  Supplement,  f§  46-59. 

Dldtlnctlon  between  orlKlnal  contractor  and  material-man:  See 
Treatise  and  Supplement,  §8  60,  77,  79  and  80. 

General  rinht*  of  orlKlnal  contractor:  See  Treatise  and  Supplement, 
!{  61-63. 

General  obligation!*  of  original  contractor*:  See  Treatise  and  Sup- 
plement, $1  64,  65. 

See  Index,  tit.  "Original  contractor." 

2  Original  contracts  definition  of  original  contract!  See  Treatise, 
§  211,  and  see  «  194. 

General  principle*  applicable  to  building  contract*!  See  Treatise 
and  Supplement,  §f  193-215. 


351  APPENDIX.  §  1193  C    C    p 

all  claims  of  other  parties  for  work  done  and  materials  fur- 
nished, as  aforesaid,  [and  embraced  within  his  contract;] 
and  in  all  cases  where  a  lien  shall  be  filed  under  this  [act] 
for  work  done  or  for  materials  furnished  3  to  any  contractor, 
he  shall  defend  any  action  brought  thereon  at  his  own  ex-  1Iens- 
pense  ;4  and  during  the  pendency  of  such  action,  the  owner 
may  withhold  from  the  contractor  the  amount  of  money  for 
which  such  lien  is  filed;5  and  in  case  of  judgment  6  against 
the  owner  or  his  property  upon  the  lien,  the  said  owner  shall 
be  entitled  to  deduct  from  any  amount  due,  or  to  become 
•  due  by  him  to  the  contractor,  the  amount  of  such  judgment 
and  costs;  and  if  the  amount  of  such  judgment  and  costs 
shall  exceed  the  amount  due  by  him  to  the  contractor,  or  if 

Construction  of  building  contract:  See  Treatise  and  Supplement, 
§§  216-228. 

Common   clauses   peculiar  to  building  contracts:    See    §§  229-257. 

Non-statutory  original  contract:  See  Treatise  and  Supplement, 
§§  258-268. 

Statutory   original   contract: 

Statutory  requirements  not  essential  to  the  validity  of  the  whole 
statutory  original  contract:  See  Treatise  and  Supplement,  §§  269-285. 

Statutory  requirements  essential  to  the  validity  of  statutory  origi- 
nal contracts:  See  Treatise  and  Supplement,  §§  286-314. 

Effect  of  validity  or  Invalidity  of  statutory  original  contract  (indi- 
rect or  direct  lien):  See.  Treatise  and  Supplement,  §§315-325. 

Extinction  of  original  contract:  See  Treatise  and  Supplement, 
§§  326-360. 

3  Labor   for   which   a    lien    is   given:     See    Treatise    and    Supplement, 
§§  130-165. 

Materials: 

Distinction  between  labor  contract  and  contract  for  material:  See 
Treatise  and  Supplement,  §§  59,  80  and  83. 

Nature  of  materials,  when  lien  allowed  and  when  not:  See  gener- 
ally Treatise  and  Supplement,  §§  87-91. 

Package  of  material:    See  Treatise  and  Supplement,  §  90. 

Carriage  charges:    See  Treatise  and  Supplement,  §  91. 

See  Index,  tit.  "Materials,"  tit.  "Material-man." 

Use  of  materials,  or  Contract  for  use  of  materials*  See  Treatise 
and  Supplement,  §  82. 

General  essentials:    See  Treatise  and  Supplement,   §  86. 

Nature  and  manner  of  use  of  materials:  See  Treatise  and  Supple- 
ment, §  87. 

Materials,  how  used:    See   Treatise   and   Supplement,   §  89. 

See  Index,  tit.  "Materials,"  tit.  "Material-man,"  and  tit.  "Use  of 
materials." 

4  General  obligations  of  original  contractor:    See   Treatise  and  Sup- 
plement,  §§  64,   65. 

5  See  preceding  note. 

e  Judgment:     See  Treatise  and  Supplement,  §§903-934. 


§§  1193,  1194  C.  C.  P.         APPENDIX.  352 

execCe°886rfrom          *ne  owner  shall  have  settled  with  the  contractor  in  full,  he 


shall  be  entitled  to  recover  back  from  the  contractor;7  [or 
his  bondsmen  or  sureties  on  any  bond  given  for  the  faithful 
performance  of  his  contract,]  s  any  amount  so  paid  by  him, 
the  said  owner,  in  excess  of  the  contract  price,  and  for  which 
not8prevention  of  tne  contractor  was  originally  the  party  liable.     [No  act  done 
IJwmerate'  or    ^  suc^  owner  in  compliance  with  any  of  the  provisions  of 
sureties.  this  chapter  shall  be  held  to  be  a  prevention  of  the  perform- 

ance <J  of  any  such  contract  by  the  contractor,  or  to  have 
exonerated  the  sureties  on  such  or  any  bond  given  for  faith- 
ful performance,10  or  for  the  payment  of  liens  of  persons 
performing  labor  or  furnishing  materials,  or  both  ;  provided 
that  such  act  was  done  in  good  faith  and  without  design  to 
injure  or  harrass  any  one.]  (In  effect  sixty  days  from  and 
after  May  1,  1911?  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.) 

§1194.     [Whenever  on  the  sale1  of  the  property-  sub- 

ject to  any  of  the  liens  provided  for  in  this  chapter,  under 

Docketing  judgr-  the  judgment  or  decree  •"•  of  foreclosure  of  such  lien,  there 

deficiency.  is  a  deficiency  4  of  proceeds,  judgment  for  the  deficiency  may 

be  docketed  against  the  party  personally  liable  •"  therefore 

in  like  manner  and  with  like  effect  as  in  action  for  the  fore- 

closure of  mortgages.]     (In  effect  sixty  days  from  and  after 

May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.) 

7  General  right*  of  owner  agalnnt  eontractort    See  Treatise  and  Sup- 
plement, §{511-520;  and  $64. 

8  Bond;  snretle*,  generally:    See  Treatise  and  Supplement,  if  605-626. 
Contractor'*  bondi    See  Treatise  and  Supplement,  S!  281-285. 

See  Index,  tit.  "Bond,"  tit.  "Bond  of  contractor." 

9  Prevention  of  performance!    See  Treatise,  i§  360,  887. 
Performance,  ^nit-rally  :    See  Treatise  and  Supplement,  5§  334-347. 

10  "Sureties,"  generally:    See  Treatise  and  Supplement,  ${605-626. 

S  1104  C.  C.  P.  i  Sale  and  redemption:  See  Treatise  and  Supplement, 
SS948-S55. 

2  Property;    dlNtlngulNhed    from    object    of   labor:     See    Treatise   and 
Supplement,  $S  166,  167. 

Description  of  property  In  claim:  See  Treatise  and  Supplement, 
§§  399-407. 

Territorial  extent  of  lien:    See   Treatise  and  Supplement.   IS  438-451. 

Etetate*  and  Interest*  subject  to  lien:  See  Treatise  and  Supplement. 
§|  459-485. 

See  Index,  tit.  "Property,"  tit.  "Description  of  property  to  be 
charged." 

3  Decree:    See  Treatise  and  Supplement,  Si  903-934. 

4  Deficiency  judgment:     See   Treatise  and  Supplement.   §{  922-925. 

•  Party  personally  liable:    See  Treatise  and  Supplement,  SI  914-921. 


353  APPENDIX.          §§  1195?  1196  c  C  p 

§  1195.     Any  number  of  persons  claiming  liens  may  join 
in  the  same  action  *  and  when  separate  actions  are  com- 
menced, the  court  may  consolidate  them.2     The  court  must 
also  allow,  as  a  part  of  the  costs,3  the  money  paid  for  [veri- 
fying] and  recording  the  [lien,  such  costs]  to  be  allowed  to  Costs 
[each  claimant]   whose  lien  is  established,  whether  he  be  . 
plaintiff  or  defendant,  or  whether  they  all  join  in  one  action 
or  separate  actions  are  consolidated.     (In  effect  sixty  days 
from  and  after  May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313 
et  seq.). 

§  1196.     Whenever  materials  1  shall  have  been  furnished 
for  use  in  the  construction,  alteration,  or  repair  2  of  any 

§  1195  C.  C.  P.      Uoinder  of  parties   plaintiff:      See   Treatise  and   Sup- 
plement,  §§  659-661. 

2  Consolidation   of  actions:     See   Treatise   and   Supplement,   §869. 

3  Costs:    See  Treatise  and  Supplement,  §§   935-947. 
§  1196  C.  C.  P.     1  Materials: 

Distinction   between   labor  contract   and   contract   for   material:     See 
Treatise  and  Supplement,    §§  59,   80   and   83. 

Nature   of   materials,   when   Hen    til  lowed   and    when    not:      See,   gen- 
erally,   Treatise   and   Supplement,    §§  87-91. 

Package  of  material:    See   Treatise  and  Supplement,   §  90. 

Carriage  charges:    See  Treatise  and  Supplement,   §  91. 

See  Index,  tit.   "Materials,"  tit.   "Material-man." 

Use   of   materials: 

Contract  for  use  of  materials:    See  Treatise  and  Supplement,   §  82. 

General  essentials:     See  Treatise  and  Supplement,  §  86. 

Nature  and  manner  of  use  of  materials:    See   Treatise   and   Supple- 
ment, §  87. 

Materials,  how  used:    See   Treatise  and   Supplement,    §  89. 

See    Index,    tit.    "Materials,"    tit.    "Material-man,"    and    tit.    "Use    of 
materials." 

2  Construction:    See,  generally   Treatise  and   Supplement,    §§  144  and 
145,  and   §  148. 

Construction  of  mine:    See  Treatise  and  Supplement,   §  150. 

General  nature  of  labor  for  which  a  lieu  is  given:    See  Treatise  and 
Supplement,   §§  130-165. 

Alteration;   character   of  alteration:     See    Treatise   and   Supplement, 
§  146. 

Distinction   between   alteration   and   repair:     See    Treatise    and    Sup- 
plement, §  147. 

Dictinction   lift  worn  alteration  and  erection:    See  Treatise  and  Sup- 
plement,  §  148. 

See,  generally,  Treatise  and  Supplement,  §§  144,  145. 

General    nature    of  labor   for   which   a   Hen    Is    given:     See    Treatise 
and   Supplement,    §§  130-165. 

See  notes  30,  32  and  33,  §  1183. 

See  Index,   tit.    "Alterations." 

Repair:      Distinction    between    alteration    and    repair:      See    Treatise, 
§  147. 

Bloom's  Sup. — 23 


§§  1196, 1197  C.  C.  P.         APPENDIX. 


Process  against 
materials. 


Personal  action 
preserved. 

Attachment. 


Personal  judg- 
ment not  to 
affect    lien. 


building  3  or  other  improvement,  such  materials  shall  not  be 
subject  to  attachment,  execution  or  other  legal  process,4  to 
enforce  any  debt  due  by  the  purchaser  of  such  materials, 
except  a  debt  due  for  the  purchase  money  thereof,  so  long 
as  in  good  faith  the  same  are  about  to  be  applied  to  the  con- 
struction, alteration,  or  repair  of  such  •  building,  mining 
claim,5  or  other  improvement.  (Amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  412.) 

§  1197.  Nothing  contained  in  this  chapter  shall  be  con- 
strued to  impair  or  [effect]  [affect]  the  right  of  any  person 
to  whom  any  debt  may  be  due  for  work  done  or  materials 
furnished  to  maintain  a  personal  action  1  to  recover  [said] 
debt  against  the  person  liable  therefor;  [and  the  person 
bringing  such  personal  action  may  take  out  an  attachment  - 
therefor,  notwithstanding  his  lien,  and  in  his  affidavit  to  pro- 
cure an  attachment  need  not  state  that  his  demand  is  not 
secured  by  a  lien;  but  the  judgment,"-  if  any,  obtained  by 
the  plaintiff  in  such  personal  action  shall  not  be  construed 
to  impair  or  merge  any  lien  held  by  said  plaintiff  under  this 
chapter;4  provided,  only,  that  any  money  collected  on  said 
judgment  shall  be  credited  on  the  amount  of  such  lien  in  any 
action  brought  to  enforce  the  same,  in  accordance  with  the 


See,  generally.  Treatise,  !i  144  and  145. 

See  General  nature  of  labor  for  which  a  lien  is  given:  Treatise 
and  Supplement,  §§  130-166. 

See  notes   30,   31,   and   32,   §  1183,   C.   C.   P. 

3  Building  or  other  Improvement:      See  note  1  to  {  1192,  C.  C.  P.,  ante. 
See  Index,  tit.  "Building,"  tit.  "Improvement." 

4  Provisional   Remedies:     See  Treatise  and  Supplement,   §§  645-648. 
Attachment:     See  Treatise  and  Supplement,   §§646,  647. 
Execution:     See   Treatise,    §§  949-953. 

5  Mine*   and    mini  mi    claims;   Second   Clause: 
Definition  of  mine:     See  Treatise  and   Supplement,   §  183. 

i.:iin.r  for  which  a  Hen  is  Riven  In  mine*:  See  Treatise  and  Supple- 
ment, §§132-137;  §§149-155,  §165. 

Object  on  which  the  labor  must  be  performed  In  mine*!  See  Trea- 
tise and  Supplement,  §§  182,  183. 

Work  on  fixture**  In  mines:     See  Treatise  and  Supplement,  §  191. 

See  Index,  tit.  "Mines  and  mining  claims." 

§1197C.  C.  P.  i  Personal  action:  See  Treatise  and  Supplement, 
§§  638-644. 

2  Attachment!     See  Treatise  and  Supplement,  §§646,  647. 

3  Judgment,  generally:     See  Treatise  and  Supplement,   §§903-934. 

4  Waiver,  forfeiture  and  release  of  Hen:     See   Treatise  and   Supple- 
ment, §§  627-637. 


355  APPENDIX.          §§1197-12010.  C.  P. 

provisions  of  this  chapter].     (In  effect  sixty  days  from  and 
after  May  1,  1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.) 

§  1198.  "Except  as  otherwise  provided  in  this  chapter,  the 
provisions  of  part  two  of  this  code  are  applicable  to,  and 
constitute  the  rules  of  practice  in,  the  proceedings  mentioned 
in  this  chapter.1  (Enacted  March  11,  1872.) 

§  1199.     The  provisions  of  part  two  of  this  code  relative 
to  new  trials  l  and  appeals,2  except  in  so  far  as  they  are  in-  ™*£  appeals, 
consistent  with  the  provisions  of  this  chapter,  apply  to  the 
proceedings  mentioned  in  this  chapter.     (Enacted  March  11, 
1872.) 

§  1200,  of  the  Code  of  Civil  Procedure,  was  repealed. 
(Stats.  &  Amdts.  1911,  pp.  1313  et  seq.  In  effect  sixty  days 
from  and  after  May  1,  1911.) 

§  1200a  was  in  terms  repealed  by  Stats.  &  Amdts.  1911, 
pp.  1313  et  seq.,  but  there  was  no  such  section,  and  it  is  not 
mentioned  in  the  title  of  the  act.  (In  effect  sixty  days  from 
and  after  May  1,  1911.) 

§  1201.  It  shall  not  be  competent  for  the  owner  *  and 
contractor,2  or  either  of  them,  by  any  term  of  their  contract,3 

§  1198  C.  C.  P.  i  Trial  and  practice:  See  Treatise  and  Supplement, 
§§  864-884. 

§  1199  C.  C.  P.     i  New  trial:     See   Treatise    and   Supplement,    §877. 

2  Appeal:     See  Treatise  and  Supplement,   §§  956-991. 

§  1201  C.  C.  P.  i  Owner:  See,  generally,  Treatise  and  Supplement,. 
§§  508-571. 

General  rights  of  owner  and  employer:  See  Treatise  and  Supple- 
ment, §§  510-522. 

General  obligations  of  owner:      See  Treatise,  §§  523-546. 

Owner  and  reputed  owner:     See  Treatise  and  Supplement,  §  509. 

Liability  of  owner  upon  statutory  notice  to  withhold:  See  Treatise 
and  Supplement,  §§  547-571. 

See  Index,  tit.  "Exhaustive,"  tit.  "Owner,"  tit.  "Owner,  Employer  or 
person  causing  improvement." 

2  Contractor:      Constitutional      and     legislative      classifications:     See 
Treatise  and  Supplement,    §§  28   and   42. 

Definition  of  original  contractor:     See  Treatise  and  Supplement,  §  45. 

Tests  of  original  contractor:      See  Treatise  and  Supplement,  §§  46-59. 

Distinction  between  original  contractor  and  material-man:  See 
Treatise  and  Supplement,  §§  60,  77,  79  and  80. 

General  rights  of  original  contractor:  See  Treatise  and  Supple- 
ment, §§  61-63. 

General  obligations  of  original  contractors:  See  Treatise  and  Sup- 
plement, §§  64,  65. 

See    Index,    tit.    "Original    contractor." 

3  Original   contract:     Definition   of  original  contract:     See   Treatise, 
§  211,  and  see   §  194. 


§  §  1 201-1 203  C.  C.  P.          APPENDIX. 


356 


"Waiving:   and 
impairing:   liens. 


Forfeiture 
of  lien. 


Mistakes   or 
errors  not  to 
avoid  lien, 
except  for  fraud. 


or  otherwise,  to  waive,  affect,  or  impair  4  the  claims  and 
liens  of  other  persons  whether  with  or  without  notice,  ex- 
cept by  their  written  consent,  and  any  terra  of  the  contract 
to  that  effect  shall  be  null  and  void.  (Enacted  March  18, 
1885,  Stats.  &  Amdts.  1884-5,  p.  146.) 

§  1202.  Any  person  who  shall  wilfully  give  a  false  notice 
of  his  claim  l  to  the  owner  under  the  provisions  of  section 
one  thousand  one  hundred  and  eighty-four  shall  forfeit 2 
his  lien.  Any  person  who  shall  wilfully  include  in  his  claim 
filed  under  section  one  thousand  one  hundred  and  eighty- 
seven  work  or  materials  not  performed  upon  or  furnished 
for  the  property  described  in  the  claims  shall  forfeit  his  lien.3 
(In  effect  sixty  days  from  and  after  May  1,  1911,  Stats.  & 
Amdts.  1911,  pp.  1313  et  seq.) 

§  1203.  No  [mistake]  or  errors  l  in  the  statement  of  the 
demand,2  or  of  the  amount  of  credits 3  and  offsetts 4  al- 
lowed [,]  or  of  the  balance  asserted  to  be  due  to  claimant.5 


General  principle*  applicable  to  building?  contract*!  See  Treatise 
and  Supplement,  f]  193-215. 

Construction  of  building:  contract!  See  Treatise  and  Supplement, 
§f  216-228. 

Common  clause*   peculiar  to  building:  contract*!     See   ||  229-257. 

Non-Htatutory  original  contract!  See  Treatise  and  Supplement, 
IS 258-268. 

Statutory    original    contract: 

Statutory  requirement*  not  e**entlal  to  the  validity  of  the  vrhole 
•tatntory  original  contracts  See  Treatise  and  Supplement,  $f  269-285. 

Statutory  requirement)!  e**entlal  to  the  validity  of  ntatntory  original 
contract*!  See  Treatise  and  Supplement,  55  286-314. 

Effect  of  validity  or  Invalidity  of  statutory  original  contract  (indi- 
rect or  direct  lien):  See  Treatise  and  Supplement,  5$  315-325. 

Extinction  of  original  contract!  See  Treatise  and  Supplement, 
§{  326-360. 

4  Waiver,  Forfeiture  and  ReleaMe  of  Hem  See  Treatise  and  Supple- 
ment, IS  627-637. 

§  1202  C.  C.  P.  i  Fnl*e  claim!  See  Treatise  and  Supplement,  §5  632, 
633. 

Ml«take  or  error  In  claim:     See  Treatise  and  Supplement,  51  412-414. 

2  Forfeiture  of  lien:     See  Treatise  and  Supplement,  {$632,   633. 

3  See  notes  1  and  2,  this  section,  ante. 
See  S  1203a,  note,  post. 

f  12O3  C.  C.  P.  i  MUtake  and  error  In  claim!  See  Treatise  and  Sup- 
plement, I  412. 

2  Statement  of  demand!     See  Treatise  and  Supplement,   §9  375-378. 
s  Credit*!     See  Treatise  and  Supplement,  15  398  and  847. 

4  Offset*!     See  Treatise  and  Supplement,   §§  515-517,   |  753. 
s  Claimant*!     See  notes  4-20,   §1183,  C.  C.  P.,  ante. 


357  APPENDIX.        §|  1203, 1203a  C.  C.  P. 

nor  in  the  description  of  the  property  6  against  which  the  ^f^ ^es  and 
claim  is  filed,  shall  invalidate  the  lien,  unless  the  court  finds 
that  such  mistake  or  error  in  the  statement  of  the  demand, 
credits  and  offsets,  or  of  the  balance  due,  was  made  with 
the  intent  to  defraud,  or  the  court  shall  find  that  [an]  inno- 
cent third  party,  without  notice,  direct  or  constructive,  has 
since  the  claim  was  filed,  become  the  bona  fide  owner  of 'the  pu^fha^ers. 
property  liened  upon,  and  that  the  notice  of  claim  was  so 
deficient  that  it  did  not  put  the  party  upon  further  [injury] 
in  any  manner.  (In  effect  sixty  days  from  and  after  May  1, 
1911,  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.) 

§  12033.!  No  mistakes  or  errors  in  the  statement  of  the  ^rorskes  and 
demand,  or  of  the  amount  of  credits  and  offsets  allowed,  or 
of  the  balance  asserted  to  be  due  to  claimant,  nor  in  the  de- 
scription of  the  property  against  which  the  lien  is  filed,  shall 
invalidate  the  lien,  unless  the  court  finds  that  such  mistake 
or  error  in  the  statement  of  the  demand,  credits  and  offsets, 
or  of  the  balance  due,  was  made  with  the  intent  to  defraud, 
or  the  court  shall  find  that  the  innocent  third  party,  without 
notice,  direct  or  constructive,  has  since  the  claim  was  filed, 
become  the  bona  fide  purchaser  of  the  property  liened  upon, 
and  that  the  notice  of  claim  was  so  deficient  that  it  did  not 
put  the  party  upon  further  inquiry  in  any  manner.  (En- 
acted March  22,  1907,  Stats.  &  Amdts.  1907,  p.  858.) 

6  Property:  Distinguished  from  object  of  labor:  See  Treatise  and 
Supplement,  §§  166,  167. 

Deserlption  of  property  in  claim:  See  Treatise  and  •  Supplement, 
§§  399-407. 

Territorial  extent  of  lien:     See  Treatise  and  Supplement,  §§  438-451. 

Estates  and  interests  subject  to  lien:  See  Treatise  and  Supplement, 
§§  459-485. 

See  Index,  tit.  "Property,"  tit.  "Description  of  property  to  be 
charged." 

§1203aC.  C.  P.  i  This  section  is  identical  with  §1203,  ante,  as 
amended  by  Stats.  &  Amdts.  1911,  pp.  1313  et  seq.,  with  the  exception 
of  a  few  words  noted  in  black  type  in  that  section. 

The  title  of  Chapter  681  (Stats.  &  Amdts.  1911)  is  "An  act  to  amend 
Sections  1183,  1184,  1185,  1187,  1190,  1192,  1193,  1194,  1195,  1197,  1202 
and  1203,  of  the  Code  of  Civil  Procedure  of  the  State  of  California  and 
to  repeal  Sections  1183a,  1200  and  1203a  of  said  code,  all  relating  to 
the  liens  of  mechanics  and  others."  But  nowhere  in  the  act  itself  is 
there  any  provision  for  the  repeal  of  this  section.  Section  13  of  the 
act  provides  for  the  repeal  of  §  1200a.  There  was  no  such  section. 


§  14,  Act  1911 


APPENDIX. 


liberal   con- 
struction   of 


act. 


.Intention  of  act. 
Direct  Hen. 

Policy  of  state. 


Sec.  14.  (Act  approved  May  1,  1911,  Stats,  and  Anults. 
1911,  pp.  1313  et  seq.) 

The  provisions  of  this  act  shall  be  liberally  construed  with 
a  view  to  effect  its  purpose.1  They  are  not  intended  as  a  re- 
enactment  of  the  provisions  of  former  statuli-s.  with  the 
policy  heretofore  impressed  upon  the  same  by  the  courts  of 
this  state,  but  are  intended  to  reverse  that  policy  to  the 
extent  of  making  the  liens  provided  for  direct,2  and  inde- 
pendent of  any  account  of  indebtedness  between  the  owner 
and  contractor,  thereby  making  the  policy  of  this  state  con- 
form to  that  of  Nevada  and  the  other  Pacific  coast  states.3 
(In  effect  sixty  days  from  and  after  May  1,  1911.) 

1  Construction   of   Mechanic*'   lien   utatutem      See   Treatise   and   Sup- 
plement, §§  24-27. 

2  Direct   and  Indirect   Hens     See  Treatise  and  Supplement,    Si  10   and 
11,  and  note  2,  {  1201,  C.  C.  P.,  ante. 

3  Klnjililp    between    atatute*    of    different    Mtnten:      See    Treatise    and 
Supplement,   5  18. 


INDEX  TO  SUPPLEMENT 

NOTE:  Section  heads  and  merely  additional  citations  to  text  of 
Treatise  are  not  indexed  here.  See  Index  of  Treatise.  For  Index 
to  California  statutory  provisions,  see  tit.  "California  Code  Sec- 
tions." The  references  are  to  pages. 


ABANDONMENT.     See  Claim  of  lien,  Contractor,  Owner, 
act  and  intent,  in,  133,  note. 

by  contractor  for  proper  refusal  to  pay  for  extras,  99. 
of  contract. 

by  contractor,  owner's  liability,  constitutionality,  23. 

California  rule,  in  case  of,  134,  note. 

Colorado  rule,  in  case  of,  133,  note. 

construction  of  California  provision  as  to,  not  unconstitutional, 
20,  134,  note. 

contractor  having  right  of,  owner  can  not  recover  damages,  181. 

damages  for  delay  have  no  bearing  in  case  of,  182,  183,  note. 

liability  of  owner  on,  181,  note,  182,  183,  188. 
general  rule  as  to,  184. 

owner  may  waive  right  to  complete  building  upon,  183. 

right  of  subcontractor  to  materials  upon,  185. 

right  to  materials  upon,  184,  185. 

rules  for  recovery  upon,  128,  note. 

of  valid  statutory  original  contract,  rights  of  subclaimants  upon, 
181. 

rule  as  to  liability  of  owner,  118. 
time  for  filing  claim,  155.     See  Claim  of  lien. 

ACCEPTANCE.     See  Completion,  Occupation  and  use. 
coupled  with  cessation  from  labor,  as  statutory  completion,  132, 

133,  note. 

of  part  of  work  by  owner,  before  entire  completion,  131. 
of  severable  part,  132,  note. 

of  work,  effect  of,  in  action  on  common  count,  264. 
waiver  of  strict  performance,  129,  note. 

with  relation  to  time  of  filing  claim  of  lien,  155.     See  Claim  of 
lien. 

ACCORD  AND  SATISFACTION, 
generally,  124,  note,  225. 

(359) 


360  INDEX    TO    SUPPLEMENT. 

ACCOUNT, 
change  of  name,  from  agent  to  principal,  168,  note. 

from  constructing  vendee  to  vendor,  not  permitted,  164,  note, 
copy  of,  not  items  of  account,  144,  note, 
definition  of,  144,  note, 
stated,  rules  concerning,  144,  note. 

ACTION, 
against  personal  representative  of  contractor,  229,  note. 

of  owner,  228,  note. 

commencing,  time  of,  owner  made  defendant  after,  234,   note, 
on  bond,  229,  note. 

time  of  commencing,  211,  note, 
on  implied   contract,   validity   of  original   contract  not   called   in 

question,  240,  241. 
to  foreclose  lien. 

equitable,  11,  note. 

in  rem,  11,  note, 
to  reach  funds  in  hands  of  municipality,  228,  note. 

ACTIONS. 

commencing,  place  of,  generally,  231. . 
time  of,  generally,  230. 

in  suit  on  garnishment,  230,  note, 
time,  place  and  manner  of,  230  et  seq. 
consolidation  of,  276. 
limitations  of,  230. 

ADJOINING  PROPERTY, 
duty  to  protect,  63. 

ADMINISTRATOR.     See  Executor, 
presentation  of  claim  to,  209,  210. 
to  preserve  property  of  estate,  83. 
to  put  in  place  lumber  of  uncompleted  structure,  83. 

ADMISSION. 

as  to  truth  of  items  leaves  cfedits  to  be  proved,  254,  note, 
by  contractor. 

binding  on  surety,  as  part  of  res  gestae,  253,  note. 

not  binding  on  surety,  after  abandonment,  254,  note. 

supporting  findings,  254,  note, 
by  owner,  admissible,  254,  note. 

ADOPTION   OF  STATUTE, 
of  other  state,  8. 
of  sister  state,  effect  as  to  construction,  12,  note. 


INDEX    TO    SUPPLEMENT. 

AGENCY.     See  Agent. 

between  husband  and  wife,  203,  note,  204,  note, 
evidence  as  to,  257. 
findings  as  to,  286,  note, 
generally,  203  et  seq. 
husband  as  agent  for  wife,  163,  note, 
of  contractor,  as  to  materials,  44,  note, 
of  husband  and  wife  for  each  other,  167,  note. 

evidence  as  to,  257,  note, 
proof  tending  to  show,  203,  note. 

AGENT.     See  Agency. 

architect  as,  of  owner,  204,  note,  205,  note, 
contractor  as,  of  owner,  pleading,  242. 
as  special  agent  of  owner,  204,  note, 
for  undisclosed  principal,  257,  note, 
holder  of  mere  option  not  agent  of  owner,  164,  note, 
knowledge  of,  that  of  owner,  with  reference  to  construction,  169. 
to  procure  loan,  power  of,  to  construct,  203,  note. 

ALIENS. 

employment  of,  21,  note,  51,  note. 

ALTERATION. 

definition  of,  69,  note,  70,  note. 

ALTERATION,   IMPROVEMENT,   REPAIR. 

definition  of,  70,  note. 

ALTERATION  OF  CONTRACT.     See  Modification  of  Contract,  Con- 
tract. 

by  consent,  100,  101,  note, 
by  oral  agreement,  105,  note, 
release  of  surety  upon,  215. 
surety  consenting  to,  216,  note. 

AMENDMENT. 

of  claim  of  lien,  275,  note. 

of  complaint,  275,  note. 

of  conclusions  of  law,  275,  note. 

AMENDMENTS  OF  1911. 

California,   1,   note,   320   et  seq.     See   California,   California   Code 
Sections. 

ANSWER. 

denials — failure  to  deny  authority  of  agent,  249,  note, 
of  conclusions  of  law  raise  no  issue,  249. 


362  INDEX    TO    SUPPLEMENT. 

ANSWER  (continued), 
generally,  249  et  seq. 
reply  to  new  matter  in,  249,  note, 
special  defenses. 

accord  and  satisfaction,  251,  note. 

agency,  249,  note. 

by  joint  contractors,  251,  note. 

damages,  251,  note. 

foreign  corporation  not  complying  with  law,  249,  note. 

inconsistent  with  general  denial,  249,  note. 

owner  not  receiving  benefit,  no  defense  in  action  on  common 
count,  250. 

payment,  251. 

release,  251,  note. 

statute  of  limitations,  249,  note. 

APPEAL. 

amount  of  judgment  not  reviewable  upon  appeal  from  order  deny- 
ing motion  for  new  trial,  300. 

claim  of  lien  deemed  amended,  in  Washington,  306,  note. 

direct  to  Supreme  Court,  300. 

error,  how  reviewed,  300,  note. 

findings,  when  objections  to  not  considered,  as  to  contractor  be- 
ing delayed,  305,  note. 

generally,  300  et  seq. 

harmless  error,  306. 

in  Oregon,  suit  to  foreclose  tried  de  novo,  304,  note. 

in  Washington,  heard  de  novo,  300,  note. 

jurisdiction  on,  300,  note. 

law  of  the  case,  300,  note. 

mortgagors  may  object  on,  to  decree  ordering  payment  of  debt 
not  due,  302. 

new  trial  of  whole  case  ordered,  307,  note. 

not  allowed  on  mere  question  of  costs,  300,  note. 

objecting  for  first  time  on,  300,  note,  307,  note. 

of  trustee  in  bankruptcy  voluntarily  paying  liens,  301,  note. 

order  on,  307,  note. 

presumptions  on,  304. 

record,  insufficient,  303,  note. 

right  of  mortgagee  to  complain  as  to  priorities,  302. 

right  to  lien,  whether  considered  on  appeal  or  on  error,  301,  note. 

service  of  notice  of,  302,  note. 

stay  bond  on,  303,  note. 

theory  of  trial  not  viewed  otherwise  on,  300,  note. 

transfer  to  Supreme  Court  from  Court  of  Appeal,  300. 

upholding  findings  on,  304,  note. 


INDEX    TO    SUPPLEMENT.  3(33 

APPENDIX,  319  et  seq. 

APPLIANCES. 

lien  for,  45,  note. 

APPLICATION  OF  PAYMENTS.     See  Payment, 
by  owner,  39,  note. 

AQUEDUCT. 

lien  for  constructing,  Treatise,  p.  142. 

v   •  .  -;.  *  t»  ;     : 
ARBITER.     See  Architect. 

ARBITRATION. 

as  condition  precedent,  pleading,  238,  note, 
award,  essentials  of,  95. 
object  of,  95. 

ARCHITECT. 

as  agent  of  owner,  57,  note,  58,  104,  204,  note,  205,  note. 

as  to  recovery  from  owner,  after  violation  of  obligations,  65. 

as  umpire,  58. 

certificate  of  professional,  not  required,  98,  note. 

constructing  building  upon  percentage,  57,  note,  58. 

when  common  law  agent  of  owner,  203. 
dual  relation  of,  58. 
duties,  in  general,  61. 
duty. 

as  to  contractor's  bond,  61. 

as  to  drawing  contract,  61. 

as  to  estimates,  59. 

as  to  instructions  to  bidders,  61,  64. 

as  to  traverse  section,  61,  64. 

not  to  act  with   bias,   regarding  certificates   or  acceptance   of 

work,  59. 

not  to  withhold  certificates  arbitrarily,  59. 
owner  contemplating  future  enlargements,  61,  62. 
to  act  fairly  and  honestly  as  arbiter,  59. 
to  embody  requirements  of  owner  in  plans,  61. 
to  furnish. 

forms  of  proposals  for  bidders,  64. 
plans  and  specifications,  61. 
preliminary  sketches  and  estimates,  61. 
to  inform  himself  personally  as  to  facts,  59. 
to  inspect  work,  58. 

excuse  for  failure,  58. 

to  obtain  information  to  prepare  plans  to  fulfill  owner's  inten- 
tions, 57. 


364  INDEX    TO    SUPPLEMENT. 

ARCHITECT.     Duty  (continued). 

to  obtain  necessary  information  from  owner,  61. 

to  prepare  plans  and  specifications,  62. 
expert  in  what,  55,  note, 
extra  work  ordered  by,  99,  note. 

failure  to  prepare  proper  plans,  right  of  recovery,  55. 
fraud  of,  59. 
generally,  54. 

giving  notice  to  surety,  58,  note, 
implied  agreement  as  to  skill  in  drafting  building  contract,  64,  65. 

as  to  suitableness  of  work  for  purpose  intended,  66. 
knowledge  required  of,  54,  61. 

liability  of,  for  neglect  of  duty,  as  to  plans,  specifications,  bond 
and  contract,  65. 

to  owner,  54. 

payment  on  account  to,  not  acceptance  of  plans,  55. 
power. 

as  to  acceptance  of  bids,  57. 

as  to  acceptance  of  work,  56. 

as  to  determining  meaning  of  contract,  56. 

as  to  entering  into  contract,  57. 

as  to  waiving  or  changing  contract,  56. 
recovery  back  of  payments  to,  by  owner,  56. 
relation  between  owner  and,  57. 
relation  with  owner  not  confidential,  57. 
relation  with  owner  one  of  trust,  57. 
rights  of,  55. 

skill  and  diligence  required  of,  61. 
unauthorized  contract  by,  82,  note, 
various  duties  of,  64,  65,  66. 

ARCHITECTURE, 
definition  of,  54. 

ARTIFICER, 
definition  of,  52,  note. 

ARTISAN. 

definition  of,  51,  note, 
subcontractor's,  lien  of,  51,  note. 

ASSIGNEE. 

generally,  206,  note,  207,  note, 
of  claim,  suit  by,  28,  note, 
of  contractor,  rights  of,  upon  abandonment  by  contractor,  133,  note. 


INDEX    TO    SUPPLEMENT.  355 

ASSIGNMENT. 

of  contract,  without  consent  of  surety,  214,  note, 
of  insurance,  to  mortgagee,  after  loss,  209. 
of  lien,  construction  of,  207,  note. 

formalities  of,  207  note. 

to  be  effective,  when  lien  perfected,  206,  note, 
of  right  to  lien,  12,  note. 

ATTACHMENT. 

generally,  229,  note. 

ATTORNEY. 

as  agent  of  assignee  and  assignor,  206,  note. 

ATTORNEYS'  FEES. 

abuse  as  to  discretion,  when  none,  296,  note. 

allowance  of,  when  provision  unconstitutional,  error,  293,  294. 

allowed  in  judgment  and  taxed  as  costs,  295,  note. 

amounts  allowed,  295,  note,  296,  note. 

constitutionality  of  provision  for,  25,  note,  294,  note. 

generally,  293,  et  seq. 

measure  of,  elements  for  determination,  295. 

proof  as  to  reasonable  allowance  of,  296,  note. 

stipulation  as  to,  254,  note. 

stipulation  that  court  fix,  296,  note. 

upon  recovery  of  less  than  jurisdictional  amount,  296,  note. 

AWARD.     See  Arbitration. 

BANKRUPTCY. 

collusive  liens,  as  against  creditors  in,  208,  note. 

generally,  208,  note.  i 

not  affecting  lien,  208,  note. 

BARK. 

no  lien  for  peeling,  in  California,  4,  note. 

BASEMENT, 
not  included  in  "building,"  in  ordinance,  76,  note. 

BEAMS. 

resting  on  stud-partitions,  contrary  to  statute,  54,  note. 

BENEFIT, 
for  whose,  law  enacted,  4,  note. 

BESTOW    LABOR. 

meaning  of,  37,  68,  note. 


366  INDEX    TO    SUPPLEMENT. 

BIDDERS, 
duty  of  architect  to  furnish  forms  of  proposals  for,  G4. 

BIDDING.     See  Competitive  bidding. 

BIDS, 
for  construction,  requisites  of,  64. 

BILL. 

of  exceptions,  requisites  of,  300,  note. 

of  particulars,  275,  note. 

presenting,  as  explaining  contract,  92,  note. 

BLASTING, 
lien  for,  70,  note,  73,  note. 

BLOCK, 
definition  of,  73,  note. 

BOARDING-HOUSE, 
in  mine,  working  in,  lien  for,  74,  note. 

BOILERMAKER, 
who  not  a,  52,  note. 

BOISE   CITY, 
powers  of,  as  to  sewers,  84,  note. 

BONA    FIDE    PURCHASER, 
rights  of,  206,  note. 

BOND. 
California  Bond  Act  of  1897,  80,  note. 

cumulative  with  lien,  200. 
Colorado  Bond  Act  of  1909,  duplicate  statement  not  required,  201, 

note. 

contract  made  part  of,  by  reference,  216,  note, 
contractor's.    See  Contractor's  bond. 

on  public  work,  222,  note, 
definition  of,  213,  note, 
distinction  between  statutory,  and  statutory  undertaking,  109,  note, 

112,  note. 

for  release  of  lien,  21,  note, 
statutory. 

given  with  common  law  bond,  109,  note. 

on  public  work,  109,  note. 

to  prevent  attachment  of  liens,  109,  note. 

to  release  liens,  109,  note. 


INDEX    TO    SUPPLEMENT. 

BOND.     Statutory   (continued). 

without  consideration,  void,  109,  note, 
to  discharge  liens,  211,  note,  212,  note, 
to  prevent  attachment  of  liens,  signing  of,  212,  note, 
when  not  given  for  benefit  of  claimants,  211,  note. 

BOOKS   OF   ACCOUNT. 

to  prove  delivery  of  materials,  266,  note. 

BUILDING.     See  House. 
as  fixture,  7,  note,  79,  note, 
as  material,  46,  note, 
definition  of,  76,  note, 
destruction  of,  38. 

frame,  in  ordinance,  meaning  wooden  building,  76,  note, 
lien  upon,  separate  from  land,  7. 
not  including  basement  in  ordinance,  76,  note. 

BREAKING   GROUND. 

in  mine,  lien  for,  71,  note. 

BRIDGE. 

as  to  object  of  labor,  Treatise,  p.  141. 
power  of  township  to  construct,  84,  note, 
repair  and  maintenance  of,  76,  note. 

BUILDING   CONTRACTS.      See   Contracts,    Statutory   original    con- 
tracts. 

clauses  peculiar  to,  generally,  95,  et  seq. 

construction  of,  generally,  91,  et  seq. 

extinction  of,  generally,  123,  et  seq. 

general  principles,  82,  et  seq. 

implied  agreement  as  to  skill  of  architect  in  drafting,  64,  65. 

requisities  of,  61. 

signing  of,  213,  note. 

what  should  be  set  forth  in,  65. 

BUILDING   ORDINANCE.    See  Ordinance, 
fire  limits,  concerning,  54,  note. 

laws  and  regulations,  knowledge  of,  required  of  architect,  54. 
permit  to  construct,  regarding,  54,  note, 
stables,  regarding,  54,  note, 
yields  to  general  law,  54,  note. 

BUILDING    PERMIT. 

as  to,  22,  note. 


INDEX    TO    SUPPLEMENT. 


BUILDING    REGULATIONS. 
knowledge  of,  required  of  architects,  54. 

BUILD   OR    REBUILD. 
definition  of,  68,  note,  70,  note,  73,  note. 

BURDEN    OF   PROOF.    See  Evidence. 
as  to  application  of  payment,  191,  note. 
as  to  delay  in  performance  to  postpone  period  for  filing  claims,  258, 

note. 
as  to  holidays  extending  time  to  post  notice  of  non-responsibility, 

259,  note. 

as  to  inadequacy  of  plans  and  specifications,  65. 
as  to  liquidated  damages,  258. 

as  to  notice  of  non-responsibility  being  given  within  time,  259,  note. 
of  authority  of  copartner,  258,  note. 
of  knowledge  of  claimant  as  to  more  than  one  original  contract, 

259,  note. 
of  payment,  258. 
of  performance  of  contract,  258,  note. 

of  modified  contract,  258,  note. 
of  right  to  make  application  of  payment,  258. 
of  waiver  of  lien,  258. 

of  performance,  258,  note. 
to  show  modification  of  contract,  on  contractor,  124,  note. 

CALIFORNIA. 

amendments  of  1911. 
annotated,  in  Appendix,  319,  et  seq.    Indexed  under  tit.  California 

Code  sections,  post. 
attachment,  229,  note. 
claim  of  lien. 

as  to  terms,  time  given  and  conditions  of  contract,  137,  note. 

contents,  135,  note. 

time  of  filing,  135,  note. 

conspiracy,  provision  as  to,  abolished,  117,  note. 
contractor's  bond,  108,  note,  109,  note. 
direct  lien  under,  5,  112,  note. 
division  of  objects  of  labor,  75,  note. 
draymen,  lien  of,  69,  note. 

duty  of  owner  to  file  original  contract,  187,  note. 
filing  of  original  contract  under,  114,  note. 
general  effect  of,  111,  note,  112,  note. 
lien  upon  fund,  status  of,  6. 

memorandum  of  original  contract  abolished,  115,  note. 
"original  contract"  in,  82,  note,  104,  note. 
statutory  original  contract  abolished,  90,  note,  106,  note. 


INDEX    TO    SUPPLEMENT.  359 

CALIFORNIA.     Amendments  of  1911  (continued). 

structures  in  mines  under,  67,  note. 

teams,  lien  for  furnishing,  69,  note. 

teamsters,  lien  of,  69,  note, 
bond  act  of  1897,  80,  note, 
constitutional  liens,  2. 
dual  nature  of  statute,  5. 
indirect  lien,  6. 

no  new  procedure  provided  under  constitution,  16. 
theory  of  previous  laws,  4,  note. 

trend  of  more  recent  decisions   as  to   constitutional   mandatory 
liens,  2. 

CALIFORNIA  CODE  SECTIONS. 

acceptance,  as  equivalent  to  completion  for  filing  claims  of  lien, 

343. 
actions. 

consolidation  of,  353. 

personal,  attachment  in,  354. 

personal  preserved,  354. 

time  of  commencing,  to  foreclose,  345,  346. 

to  foreclose  lien,  recovery  upon  contractor's  bond  in,  333. 
addition  to  structure. 

lien  for,  324. 

person  in  charge  of,  as  agent  of  owner,  328. 
agency  for  owner. 

in  case  of  mines  and  mining  claims,  330,  331. 
structures,  327,  328. 

presumption  as  to,  348. 
agent  for  owner. 

architect  as,  in  case  of  structures,  328. 

builder  as,  in  case  of  structures,  328. 

contractor  as,  in  case  of  structures,  327. 

lessee  as,  in  case  of  mines  and  mining  claims,  331. 

person  acting  by  his  authority,  in  case  of  structures,  327. 

person  acting  under  him,  327. 

person  having  charge  of  work,  on  structures,  328. 

sub-contractor  as,  in  case  of  structures,  327. 
alteration. 

lien  for,  in  case  of  structures,  324. 

of  the  work,  not  to  release  sureties,  334. 
alterations,  person  in  charge  of,  as  agent  of  owner,  in  case  of 

structures,  328. 
appeals,  rules  as  to,  355. 

appliances,  lien  for  furnishing,  in  case  of  structures,  324. 
aqueduct,  as  object  of  labor,  325. 
Bloom's  Sup. — 24 


370  INDEX    TO    SUPPLEMENT. 

CALIFORNIA  CODE  SECTIONS  (continued), 
architect. 

as  agent  for  owner,  in  case  of  structures,  328. 
entitled  to  lien,  321. 
areas,  lien  for  constructing,  346. 
artisans,  entitled  to  lien,  321. 
attachment. 

against  materials  furnished,  353. 
in  personal  action,  notwithstanding  lien,  353. 
bestowing  necessary  services,  all  persons  entitled  to  lien,  323. 
bona  fide  purchasers,  rights  of,  under  erroneous  claim  of  lien,  357. 
bond.     See  "Sureties,"  this  title, 
lawful  for  owner  to  take,  335. 
working,  or  contract,  agency  for  owner  under,  In  case  of  mines 

and  mining  claims,  331. 
bond  of  contractor, 
contents  of,  333. 
filing,  to  limit  extent  of  lien,  334,  335. 

with  original  contract,  333. 
recovery  upon, 
in  action  on,  334. 
in  action  to  foreclose  lien,  333. 
requisites  of,  333. 
to  inure  to  benefit  of  lienors,  333. 
bridge,  as  object  of  labor,  325. 

builder,  as  agent  for  owner,  in  case  of  structures,  328. 
builders,  entitled  to  lien,  321. 
building,  as  object  of  labor,  324. 

cancellation  of  lien,  by  dismissal  for  want  of  prosecution,  346. 
cellars,  construction  of,  lien  for,  346. 
cessation   from  labor,   equivalent  to   completion   for   purposes  of 

law,  343. 

change  of  work,  not  to  release  sureties,  334. 
claim  of  lien. 

against  two  or  more  properties,  344,  345. 
contents  of. 

description  of  property,  341. 
designating  amount  due  on  each  of  two  or  more  buildings,  344. 

effect  of  failure  so  to  do,  344. 
name  of  owner  or  reputed  owner,  341. 
name  of  person  employing,  341. 
name  of  person  to  whom  materials  furnished,  341. 
statement  of  agreed  price  and  when  payable,  341. 
statement  of  agreed  work,  and  when  to  be  done,  341. 
statement  of  demand,  341. 


INDEX    TO    SUPPLEMENT. 


371 


CALIFORNA  CODE  SECTIONS.     Claim  of  lien     (continued). 

filing. 

generally,  340  et  seq. 
place  of,  341. 
time  of,  340. 

estoppel  as  to  defense  relating  to,  344. 
what  deemed  completion  for,  343. 

fraud  in  statements,  357. 

indexing,  345. 

mistake  or  error  in,  effect  of,  357. 

recording  of,  345. 
fees  for,  345. 

verification  of,  342. 

when  must  be  filed,  344. 

wilfully  false,  effect  of,  356,  357. 
completion. 

equivalents  of,  for  filing  claims  of  lien,  342,  343. 

what  deemed,  for  filing  claims  of  lien,  343. 
consolidation  of  actions,  353. 
construction. 

lien  for,  on  structures,  324. 

of  lien  law,  358. 

person  in  charge  of,  as  agent  of  owner,  in  case  of  structures,  328. 
consumption. 

of  materials,  lien  for,  in  case  of  mines  and  mining  claims,  330. 

in  case  of  structures,  323. 
contract.     See  Original  contract,  this  title. 

price,  as  limitation  of  lien,  334,  335. 
contractor. 

as  agent  of  owner,  in  case  of  mines  and  mining  claims,  330. 
in  case  of  structures,  327,  328. 

bond  of,  333.     See  "Bond,"  "Surety,"  this  title. 

can  not  waive,  affect  or  impair  subclaimants'  liens,  355,  356. 

duty  of,  to  defend  lien  actions,  351. 

entitled  to  lien,  320. 

recovery  on  lien,  350,  351. 
costs. 

reasonable,  to  be  withheld  upon  notice  to   withhold,   337. 

to  be  allowed  each  claimant  establishing  lien,  353. 
credit. 

giving,  as  affecting  time  to  foreclose  lien,  345,  346. 
defense,  as  to  time  of  filing  claim  of  lien,  344. 
deficiency  judgment  against  contractor  and  sureties,  334. 

docketing,  352. 

demand,  statement  of,  in  claim  of  lien,  341. 
description  of  property  in  claim  of  lien,  341. 


372  INDEX    TO    SUPPLEMENT. 

CALIFORNIA  CODE  SECTIONS  (continued). 

development  of  mine  or  mining  claim,  lien  for,  329. 
direct  lien  provided  for,  331,  358. 
dismissal  of  action,  for  want  of  prosecution,  346. 
ditch,  as  object  of  labor,  325. 
draymen,  entitled  to  lien,  322. 
error  in  claim  of  lien,  356,  357. 
estates  subject  to  lien,  338,  348,  349. 

estoppel  of  owner,  by  failure  to  file  notice  of  completion  or  ces- 
sation, 344. 

execution  against  materials  furnished,  353. 
extent  of  lien.     See  "Limitations  on  liens,"  this  title. 

as  to  amount,  331,  334,  335. 

as  to  contract  price,  334,  335. 

estates  and  interests  subject  to  lien,  338,  348,  349. 

in  case  of  mines  and  mining  claims,  330. 

in  case  of  structures,  326. 

not  to  exceed  agreed  price,  332. 
reasonable  value,  332. 

• 

territorial. 

convenient  space  about  structure,  337,  338. 

generally,  337  et  seq. 

land  for  convenient  use  and  occupation,  338. 

to  amount  due  from  owner,  when,  334. 

when  not  beyond  labor  and  materials  embraced  within  original 

contract,  or  modification,  332. 
false. 

claim  of  lien,  effect  of,  356,  357. 

notice  to  withhold,  effect  of,  356,  357. 
fees  for  recording  claim  of  lien,  345. 
fence,  as  object  of  labor,  325. 
filing  claim  of  lien,  340. 

notice  of  completion  or  cessation,  343. 
filling  lot  in  incorporated  city,  or  town,  lien  for,  346. 
flume,  as  object  of  labor,  325. 
foreclosure  of  lien,  time  for,  345,  346. 
forfeiture  of  lien,  356. 
fraud  in  claim  of  lien,  356,  357. 
furnishing  appliances,  lien  for,  in  case  of  structures,  324. 

materials,  lien  for,  in  case  of  mines  and  mining  claims,  330. 
in  case  of  structures,  323. 

power,  lien  for,  in  case  of  structures,  324. 

teams,  lien  for,  in  case  of  structures,  324. 
grading  lot  in  incorporated  city,  lien  for,  346. 
impairing  liens  by  owner  or  contractor,  355,  356. 


INDEX    TO    SUPPLEMENT.  373 

CALIFORNIA  CODE  SECTIONS  (continued), 
improvement,  person  in  charge  of  other,  as  agent  of  owner,  in 

case  of  structures,  328. 

improving  lot  in  incorporated  city  or  town,  346. 
indexing  claim  of  lien,  345. 

intent  of  law,  as  to  limiting  liability  of  owner,  335. 
intention  of  lien  law,  358. 
interests  subject  to  lien,  348,  349. 
health  officer,  lien  for  connecting  dwelling  house  with  sewer,  at 

instance  of,  347. 
joinder  of  plaintiffs,  353. 
judgment,  deficiency,  against  contractor  and  sureties,  334. 

docketing,  352. 

personal,  money  collected  on,  to  be  credited  on  lien,  354. 
not  to  affect  lien,  354. 

to  determine  land  for  convenient  use  and  occupation,  338. 
labor,  all  persons  performing,  entitled  to  lien,  322. 

object  of  in  mines  and  mining  claims,  329.   , 
in  case  of  structures,  324  et  seq. 

persons  performing,  in  mines  and  mining  claims,  lien  of,  329. 
laborers  of  every  class,  entitled  to  lien,  322. 

lessee  as  agent  of  owner,  in  case  of  mines  and  mining  claims,  331. 
lien,  extent  of,  in  case  of  mines  and  mining  claims,  330. 

in  case  of  structures,  326. 
lien  for  connecting  dwelling  house  with  sewer,  347. 

for  street  work,  346. 

for  value,  in  case  of  structures,  326,  327. 

to  be  direct,  331. 

upon  the  property,  in  case  of  structures,  326. 
limitation  of  action  to  foreclose  liens,  345. 
limitations  on  liens.     See  "Extent  of  lien,"  this  title. 

as  to  amount,  331. 

as  to  contract  price,  334,  335. 

by  notice  as  to  labor  or  materials  in  original  contract  or  modi- 
fications, 332,  333. 

intent  of  law,  334,  335. 

not  by  contract  price,  exception,  332. 

recovery  restricted  to  amount  due  from  owner,  when,  334. 
lot,  lien  for  grading,  filling  in  or  improving,  346. 
machinery,  as  object  of  labor,  325. 
machinist  entitled  to  lien,  321. 
material-men  entitled  to  lien,  320. 
materials. 

furnished  to  be  used  or  consumed,  in  case  of  mines  or  mining 

claims,  lien  for,  330. 
in  case  of  structures,  323. 


374  INDEX    TO    SUPPLEMENT. 

CALIFORNIA  CODE  SECTIONS.     Materials  (continued). 

process  against,  353. 
mechanics  entitled  to  lien,  320. 
miners  entitled  to  hen,  322. 

mines  and  mining  claims,  lien  for  work  in,  329  et  seq. 
mistake  in  claim  of  lien,  356,  357. 

modifications  of  original  contract,  notice  of,  as  limitation  on  lia- 
bility, 332,  333. 

not  to  release  sureties,  334. 
names  in  claim  of  lien,  341. 
nature  of  work. 

in  mines  and  mining  claims,  329,  330. 

in  structures,  324  et  seq. 
new  trial,  rules  as  to,  355. 
notice  of  completion  or  cessation. 

contents  of,  344. 

equivalent  of  completion,  for  filing  claim  of  lien,  343. 

failure  to  file,  effect  of,  344. 

fee  for  recording,  344! 

filing,  place  of,  343. 
time  of,  343. 

recording,  344. 

verification  of,  344. 
notice  of  non-responsibility. 

contents  of,  350. 

effect  of  not  giving,  349. 

how  given,  350. 

time  of  giving,  349,  350. 

verification  of,  350. 

notice  of  original  contract,  limitations  in  lien  by,  332,  333. 
notice  of  prior  liens,  claimants  without,  priorities,  339. 
notice  to  withhold. 

contents  of,  335,  336. 

defects  in,  effect  of,  336,  337. 

duty  of  owner,  upon  receiving,  in  case  of  non-lienable  property, 
337. 

effect,  in  case  of  work  on  public  property,  337. 

generally,  335  et  seq. 

giving  wilfully  false,  356. 

owner  may  demand,  336. 

reasonable  costs  of  litigation  to  be  withheld  upon,  337. 

rights  of  owner  upon  receiving,  337. 

service  of,  manner  of,  336. 

time  of  giving,  335. 

who  may  give,  335. 


INDEX    TO    SUPPLEMENT. 


375 


CALIFORNIA  CODE  SECTIONS  (continued). 

object  of  labor,  in  case  of  mines  and  mining  claims,  329. 

in  case  of  structures,  324  et  seq. 
occupation,  as  equivalent  to  completion  for  filing  claims  of  lien, 

343. 

original   contract, 
filing  of,  as  equivalent  of  actual  notice,  to  limit  lien,  333. 

with  bond,  to  limit  extent  of  lien,  335. 
lien  not  to  extend  beyond  labor  and  materials  embraced  in,  or 

modifications,  when,  332. 

modifications  of,  filing,  to  limit  liability,  333. 
owner. 

acts  of,  not  prevention  of  performance,  or  to  exonerate  sureties, 

352. 
agency  for,  in  case  of  mines  and  mining  claims,  330,  331. 

in  case  of  structures,  327. 

agent  for,  architect  as,  in  case  of  structures,  328. 
builder  as,  in  case  of  structures,  328. 
contractor  as,  in  case  of  mines  and  mining  claims,  330. 

in  case  of  structures,  327. 

lessee  as,  in  case  of  mines  and  mining  claims,  331. 
persons  acting  by  his  authority  or  under  him,  in  case  of  struc- 
tures, 327. 
person  having  charge,  in  case  of  mines  and  mining  claims. 

331. 
subcontractor  as,   in  case  of  mines  and  mining  claims,   331. 

in  case  of  structures,  327. 

superintendent  as,  in  case  of  mines  and  mining  claims,  331. 
can  not  waive,  affect  or  impair  subclaimants'  liens,  355,  356. 
duty  of,  to  give  notice  of  non-responsibility,  to  avoid  liability, 

349. 

upon  receiving  withhold  notice,  in  case  of  non-lienable  prop- 
erty, 337. 
estoppel  of,  by  failure  to  file  notice  of  completion  or  cessation, 

344. 

knowledge  of,  of  work,  interest  bound,  349. 
neglect  of,  to  connect  dwelling  house  with  sewer,  after  notice, 

effect  of,  347. 
rights  of. 

against  contractor,  to  deduct  lien  judgments  and  costs,  351. 
to  recover  excess  of  lien  judgments  over  amount  due,  351, 

352. 

to   withhold   amounts   for  which   action   to   foreclose   com- 
menced, 351. 

against  sureties  of  contractor,  to  recover  amount  paid  judg- 
ment lien  creditors  over  contract  price,  351,  352. 


376  INDEX    TO    SUPPLEMENT. 

CALIFORNIA   CODE   SECTIONS.     Owner.     Rights  of    (contiuued). 
to  demand  notice  to  withhold,  336. 

to  file  notice  of  completion  or  cessation  from  labor,  343. 
to  require  bond  or  other  security,  335. 
upon  receiving  notice  to  withhold,  337. 
Pacific  Coast  states,  policy  of,  adopted,  358. 
person  having  charge  of  work,  as  agent  of  owner, 
in  case  of  mines  and  mining  claims,  331. 
in  case  of  structures,   328. 
personal  action, 
attachment  in,  354. 
judgment  in,  354. 
preserved,  354.  - 

personal  judgment.     See  "Judgment,"  this  title, 
persons    entitled    to    liens, 
in  case  of  mines  and  mining  claims,  329. 
in  case  of  structures,  320  et  seq. 
plaintiffs,  joinder  of,  353. 
policy  of  lien  law,  358. 
postponing  lien,  by  failure  to  designate  amount  due  on  two  or 

properties,  344,  345. 

power,  lien  for  furnishing,  in  case  of  structures,  324. 
practice,  rules  of,  355. 
prevention  of  performance,  no  act  done  required  by  chapter,  to 

be  held,  352. 
price,  contract,  as  limitation  on  lien,  334,  335. 

lien  not  to  exceed  agreed,  332. 
priorities, 
between  mechanics'  liens  and  other  estates,  interests  or  liens, 

339,  340. 
over  unrecorded  encumbrances  of  which  lienor  had  no  notice, 

339. 
upon  failure  to  designate  amount  due   upon  each  of  two  or 

more  buildings,  344,  345. 
property,  how  long  bound  by  lien,  345,  346. 

lien  upon,  for  work  on  structures,  326. 
public  property,  effect  of  notice  to  withhold,  in  case  of  work  on, 

337. 

railroad  as  object  of  labor,  325. 
recording, 
claim  of  lien,  345. 

cost  of  recoverable,  353. 
notice  of  completion  or  cessation,  344. 

relation  of  lien  to  commencement  of  work  or  furnishing  materials, 
338,  339. 


INDEX    TO    SUPPLEMENT. 


377 


CALIFORNIA  CODE  SECTIONS  (continued), 
repair  of  structure. 

lien  for,  324. 

person  in  charge  of,  as  agent  of  owner,  328. 
rooms  under  sidewalk,  lien  for  constructing,  346. 
sale,  352. 

second  clause,  lien  under,  329  et  seq. 

services,  all  persons  bestowing  necessary,  entitled  to  lien,  323. 
sewer,  connecting,  lien  for,  347. 
sidewalk,  improving,  lien  for,  346. 
skill,  all  persons  bestowing,  entitled  to  lien,  323. 
street,  improving,  lien  for,  346. 
structure,  other,  as  object  of  labor,  325,  326. 
structures. 

extent  of  lien  on,  326. 

first  clause,  320  et  seq. 

nature  of  work  on,  324. 

object  of  labor  on,  324. 
subcontractor. 

as  agent  of  owner,  in  case  of  mining  claims,  331. 
in  case  of  structures,  327.. 

entitled  to  lien,  320. 

subtractive  process,  working  by,  in  mines,  lien  for,  329,  330. 
superintendent,  as  agent  of  owner,  in  mines,  331. 
sureties. 

change  or  alteration  of  work  not  to  exonerate,  334. 

liability  to  owner  for  excess  judgments,  352. 

modification  of  original  contract  not  to  exonerate,  334. 

on  contractor's  bond,  333,  335. 

teams,  lien  for  furnishing,  in  case  of  structures,  324. 
teamsters,  entitled  to  lien,  322. 
territorial  extent  of  lien,  337  et  seq. 
time  of  filing  claim  of  lien  of  original  contractor,  340. 

of  others,  340. 
trivial  imperfection,  not  to  prevent  filing  of  claim  of  lien,  342, 

343. 

tunnel,  as  object  of  labor,  325. 
use,  as  equivalent  to  completion  for  filing  claims,  343. 

of  materials,  in  case  of  mines,  330. 

in  case  of  structures,  323. 
value. 

lien  for,  in  case  of  mines,  330. 
in  case  of  structures,  326,  327. 

lieu  not  to  exceed,  332. 
vaults,  constructing,  lien  for,  346. 
verification  of  claim  of  lien,  342. 


378  INDEX    TO    SUPPLEMENT. 

CALIFORNIA  CODE  SECTIONS.     Verification  of  claim  of  lien  (con- 
tinued). 

of  lien,  cost  of,  recoverable,  353. 
wagon  road,  as  object  of  labor,  325. 
waiving  liens  of  subclaimants,  by  owner  or  contractor,  without 

writing,  prohibited,  355,  356. 
well,  as  object  of  labor,  325. 
wharf,  as  object  of  labor,  324. 

withhold,  notice  to.     See  "Notice  to  withhold,"  this  title, 
work,  nature  of,  in  mines,  329. 

in  case  of  structures,  324  et  seq. 
works,  lien  on,  in  case  of  mines,  330. 

CANAL. 

lien  on,  76,  note. 

locks  of,  highway,  77,  note. 

CAMP   EQUIPMENT, 
no  lien  for,  45,  note. 

CAPS, 
as  material,  46,  note. 

CARPENTER. 

as  common  law  agent  of  owner,  104. 

CELLS. 

in  jail,  as  fixtures,  79,  note, 
furnishings,  46,  note. 

CERTIFICATE.     See   Architect, 
as  evidence,  259,  note, 
as  work  progresses,  99,  note, 
conclusiveness  of,  as  against  sureties,  99,  note, 
delay  in  issuing  architect's,  not  to  extend   time  of  filing  claim, 

154,  note. 

of  architect,  not  to  be  withheld  arbitrarily,  59. 
of  professional  architect  not  required,  98,  note, 
presentation  of,  pleading,  239,  note, 
progress,  conclusiveness  of,  99,  note. 

CESSATION    FROM    LABOR. 

for  thirty  days,   coupled   with  occupation   and   use,   as   statutory 

completion,  130,  131,  132,  133,  note, 
time  for  filing  claim,  155,  156.     See  Claim  of  lien. 

CHIEF   ENGINEER.     See  Engineer,  Architect. 

CISTERN, 
as  to,  77,  note. 


INDEX    TO    SUPPLEMENT.  379 

CLAIMANTS.    See  various  claimants,  Contractor,  etc. 
definition  of,  28,  note. 

CLAIM   OF   LIEN. 

against   railroad,   segregating   amount   in   each   county,    unneces- 
sary, 159,  note. 

amendment  of,  149,  note,  275,  note, 
as  evidence  of  lien,  260. 
contents  of. 

contract,    terms,    time    given    and    conditions    of,    express    and 

implied  agreement,   143,  note, 
description  of  property.     See  Description, 
general  rule  as  to,  145,  146. 
island,  146,  note, 
owner  not  estopped  as  to,  146. 
wrong  block,  146. 
generally,  137  et  seq. 

in  California  Amendments  of  1911,   137,  note.     See   California, 
name  of  party  to  be  charged,  140,  note, 
pleading,  243. 

receipt  of  payment,  139,  note, 
construction  of,  on   behalf  of  subclaimants   not  to   be   strained, 

137,  note. 

construction  of  statute  as  to  number  that  may  be  filed,  136,  note, 
terms,  time  given  and  conditions  of  contract, 
construction  of  provision,  141. 
object  of  provision,  141. 
test  of  sufficiency  of  statement,  141. 
defective,  how  treated  in  appellate  court,  149,  note, 
demands   against  separate   buildings,   claim  on  one   of  group   of 

mines,  147,  note. 

distinguished  from  notice  to  withhold,  199,  200. 
evidence,  merely,  135,  note. 

failure  to  formally  introduce  in  evidence,  261,  note, 
false,  139,  note, 
filing,  generally,  150  et  seq. 

time  of.    See  Notice  of  completion, 
when  property  is  in  hands  of  receiver,  150,  note, 
names  in,  140,  note. 

nature,  necessity  and  purpose,  generally,  135  et  seq. 
number  that  may  be  filed,  149,  note. 

statute  to  be  liberally  construed  as  to,  136,  note, 
objection  to  introduction  of,  260. 

when  must  be  raised,  261,  note, 
of  guardian,  28,  note, 
omissions  in,  260,  note. 


380  INDEX    TO    SUPPLEMENT. 

CLAIM  OF  LIEN  (continued), 
omitted  matters  of  substance,  137,  note, 
right  of  subcontractor's  laborers  to  file,  52. 
signature,  by  corporation,  147. 
statement  of  demand. 

construction  of  provision,  138,  note, 
deducting  credits  and  offsets,  138,  139,  note, 
mistake  in,  139,  note. 

time  of  filing.     See  Acceptance,  Completion,  Occupation  and  Use. 
after  notice  of  cessation  and  abandonment,  155,  156. 
after  occupation  by  owner,  154,  155. 
after  substantial  completion,  154. 
after  thirty  days'  cessation  from  labor,  155. 
constructive  completion  as  to,  155,  156. 
contractor's  laborer's  claim,  153,  note, 
material-man's  claim,  153,  note. 

delay  in  issuing  architect's  certificate  not  to  extend,  154,  note, 
equivalents  of  completion  as  to,  155,  156. 
estoppel  as  to,  131,  265. 
on  failure  of  owner  to  file  notice  of  compJetion  or  cessation, 

152. 

original  contractor's  claim,  152,  note,  153,  note, 
owner  misleading  claimant  as  to,  131. 
owner's. 

claimant's  claim,  in  absence  of  notice  of  completion  or  cessa- 
tion, 152. 

claimant's  claim,  New  Mexico,  157,  note, 
material-man's  claim,  153,  note, 
pleading,  242. 

•   statutory  completion  for,  occupation  and  use  as,  130,  131,  132. 
subcontractor's  claim,  153,  note,  155,  note, 
tacking  items  to  extend,  154. 

under  one  continuous  contract,  153,  note,  154,  note, 
several  original  contracts,  154,  note, 
when  work  one  entire  undertaking,  152. 
under  several  original  contracts,  136,  note, 
unnecessary  statements  in,  that  work  was  done  on  fixture  in 

mine,  138,  note, 
variances  in.     See  Variances, 
verification, 
by  corporation,  147. 
purpose  of,  147,  148. 
what  not  competent  to  prove,  260,  note. 

CLAIMANT. 

director  of  corporation  as,  84,  note. 


INDEX    TO    SUPPLEMENT. 


CLAIMANT   (continued). 

must    connect    himself    with    owner,    190,    note,    193,    note,    204, 
note.    See  Privity. 

CLAIM  STATEMENT.     See  Claim  of  lien. 

CLEARING. 

land,  lien  for,  67,  note. 

sagebrush  from  railroad  right  of  way,  lien  for,  73,  note. 

COAL  MINE. 
liens  for  work  in,  71,  note. 

CODE. 

National  Electric,  sufficiency  of,  63,  note. 

COLLUSIVE. 

liens,  with  regard  to  bankruptcy,  208,  note. 

COLORADO. 

abandonment  of  contract,  rule  in  case  of,  133,  note. 
appeal,  when  case  considered  on,  or  on  error,  301,  note. 
contractor's  bond  on  public  work,  80,  note. 
duplicate  statement,  when  not  required,  201,  note. 
findings,  failure  to  request,  305,  note. 

COMMENCING  ACTIONS.     See  Actions. 
generally,  230  et  seq. 

COMMON  COUNTS.     See  Answer,  Complaint,  Pleading. 

COMMON    LAW. 

mechanics'  liens  unknown  to,  1,  note. 

COMPETITIVE    BIDDING. 

in  public  contracts,  exceptions  to  rule,  as  to  definiteness  of  de- 

tails of  plans  and  specifications,  84,  85,  86,  note. 
matters  restricting,  and  avoiding  public  contract,  88,  note. 

COMPLAINT. 

cause  of  action,  stating,  236. 

by  mortgagee  paying  liens,  244,  note. 

on  bond,  236,  note. 
generally,  236  et  seq. 
striking  from  files,  275,  note. 

COMPLETION. 

of  contract.     See  Acceptance,   Performance. 
substantial  for  filing  claim,  154. 


382  INDEX    TO    SUPPLEMENT. 

COMPLETION   (continued). 

of  structure,  statutory  equivalents  of,  130,  note,  133,  note, 
statutory,  acceptance  coupled  with  cessation  from  labor  as,  132, 

133,  note.' 
occupation  and  use  as,  130,  131,  132,  133,  note. 

COMPLIANCE   WITH   STATUTE, 
difficulty  of,  5,  note, 
substantial  only  required,  14,  note. 

CONCRETE, 
specifications  as  to,  63,  note. 

CONCLUSIONS  OF  LAW.     See  Questions  of  law. 
alleging  "valid  liens,"  236,  note. 

CONDEMNATION  PROCEEDINGS, 
as  to,  206,  note, 
deposit  taking  place  of  property,  278,  note. 

CONDITION   PRECEDENT, 
pleading,  238. 

CONDUIT. 

not  strictly  ditch  or  canal,  76,  note. 

CONSOLIDATION    OF   ACTIONS, 
as  to,  276. 
judgment  after,  288. 

CONSPIRACY. 

•provision   relating   to,   omitted    from   California   Amendments   of 
1911,  117,  note. 

CONSTITUTIONAL  LAW. 
Constitution, 
of  Georgia,  18. 

self-operating,  18,  note, 
of  North  Carolina,  19,  note, 
of  Texas,  19,  note, 
no  laborer's  lien,  19,  note, 
other  than  constitutional  mandatory  liens  may  be  provided,  19, 

note. 

self-executing,  19,  note, 
operation  of,  18. 

twenty-five  per  cent  payment  sufficient  compliance  with,  107. 
constitutional, 
command,  construction  of  law  passed  by  virtue  of,  15,  note. 


INDEX    TO    SUPPLEMENT. 


383 


CONSTITUTIONAL  LAW.     Constitutional  (continued), 
liens,  California,  2. 

distinction  between  and  statutory  liens,  2. 
trend  of  more  recent  California  decisions,  2. 
mandatory  liens,  claimants  can  not  be  deprived  of,  19. 

forfeiture  of,  20,  note. 

origin,  recognition  of  later  decisions,  16,  17. 
provision,  legislation  in  connection  with,  16. 
self-executory,  17. 

state  and  municipalities,  application  to,  18. 
right,  14. 
constitutionality. 

as  to  duplicate  statement,  21,  note, 
as  to  title  of  act,  21,  note, 
of  allowance  of  attorneys'  fees,  25,  note,  294,  note. 

of  interest,  24. 

of  construction  of  provision  as  to  abandonment,  20,  23. 
of  law  regulating  and  licensing  various  callings,  54,  note,  55, 

note. 

regulating  plumbing,  55,  note, 
relating  to  sale  of  powder,  46,  note, 
of  lien  in  excess  of  contract  price,  23. 
of  statute  of  New  Mexico,  21. 

construction   given  to   provision   as   to   abandonment  not  uncon- 
stitutional, 134,  note, 
provision  as  to  allowance  of  attorneys'  fees,  25,  note,  294,  note. 

CONSTRUCTED. 

definition  of,  69,  note. 

CONSTRUCTION, 
character  of,  91,  note, 
definition  of,  69,  note. 

of  public  buildings,  law  relating  to  constitutional,  22,  note, 
unlawful,  not  rendering  lease  void,  82,  note. 

CONSTRUCTION  OF  CONTRACT.     See  Contract, 
as  to  powers  of  engineer,  91,  note, 
for  development  of  water,  94,  note, 
for  erection  of  theatre  building,  94,  note. 

CONSTRUCTION    OF  STATUTE. 

as  to  number  of  claims  of  lien  that  may  be  filed,  136,  note, 
by  adoption  of  that  of  other  state,  8,  12,  note, 
in  state  of  transition,  12. 
legislative  construction,  12,  note, 
liberal,  13,  note. 


INDEX    TO    SUPPLEMENT. 


CONSTRUCTION  OF  STATUTE  (continued). 
passed  by  constitutional  command,  15,  note. 
rules  as  to,  14. 
substantial  adherence  necessary,  13,  note. 

CONSTRUCTIVE  COMPLETION.     See  Claim  of  lien. 
for  filing  liens,  155,  156. 

CONTRACT.     See    Building    contracts,   Construction,   Original    Con- 

tract,   Performance,    Public    contract,    Statutory    original 

contract. 

absence  of  contractual  relation,  82,  note. 
as  personal  obligation  of  contractor,  91. 
building,  general  principles,  82  et  seq. 
considered  as  a  whole,  91,  note. 
construction  of,  for  development  of  water,  94,  note. 
deviation  from,  by  consent,  100. 
duty  of  architect  as  to  drafting,  61. 
explained  by  conduct  of  parties,  92,  note. 
fraud  of  trustee  of  school  district  in,  89,  note. 
illegal  public,  stifling  competition,  82,  note. 
invalid  provision   for  employment  of   unnaturalized   citizens,   82, 

note. 

law  to  be  read  into,  217,  note. 
modification  of,  generally,  123,  note. 

to  prevent  defective  results,  123,  note. 
mutual  recission  of,  179,  note. 
of  public  corporations,  violating  statute,  84,  note. 
performance  of,  in  another  state,  124,  note. 
price,  on  public  work,  exceeding  estimate,  84,  note. 
provision  in,  for  furnishing  all  labor  and  materials,  102,  103. 
release  of,  and  making  of  new,  124,  note. 

signing  of,  by  proper  officer  of  public  corporation,   84,   note. 
silent  as  to  amount  of  excavation,  91,  note. 
validity  of,  not  called  in  question  in  action  on  implied  contract, 

240,  241. 

CONTRACTOR.     See  Agent,  Original  contractor,  Waiver  of  lien. 
agency  of,  as  to  use  of  materials,  44,  note. 
and  wife,  privity  with,  48,  note. 
as  common  law  agent  of  owner,  104. 
as  employee  of  owner,  104. 
failure  of  to  completely  perform  contract,  100. 
not    to   abandon    work    for   refusal    to    pay    unlawful    claim    for 
extras,  99. 


INDEX    TO    SUPPLEMENT. 


385 


CONTRACTOR   (continued). 
obligations   of. 

as  to  land  slides,  187. 

upon  destruction  of  building,  190. 

when  labor  or  material  claims   must  be  paid,   215,   note,   216, 

note. 

other,  delaying  performance,  182. 
personal  judgment  against,  49,  note, 
personal  obligations  of,  91. 
receiving  percentage  of  cost,  104. 
rights  of. 

to  recover  from  owner,  when  there  are  minor  defects,  186. 

to  recover  personal  judgment,  32. 

CONTRACTOR'S   BOND.     See  Bond. 

duty  of  architect  as  to,  61,  65. 

on  public  work,  80,  note. 

requisites  of,  61. 

under  California  Amendments  of  1911,  108,  note.     See  California. 

CONTRACT   PRICE. 

as  fund,  38,  note. 

liens  in  excess  of,  constitutionality,  23. 

CONTRACT  WORK. 

person  doing,  meaning  of,  31,  note. 

CONTROL. 

over  building,  municipal,  27. 

CONVENIENT    USE    AND    OCCUPATION.      See    Extent    of    lien, 

Questions  of  fact, 
mine  as  necessary  for  mill,  159,  note. 

COOKING. 

in  mine,  for  employers,  no  lien  for,  52,  note,  74,  note. 

CORPORATION.     See  Public  corporation, 
apparent  authority  of  officers  of,  84,  note, 
as  claimant,  28,  note,  84,  note, 
authority  of  president,  84,  note, 
director  of,  as  claimant,  84,  note, 
foreign,  alleging  performance  of  prerequisites  for  doing  business, 

236,  note. 

as  claimant,  83,  note, 
compliance  of,  with  state  law,  83,  note, 
knowledge  of  officer,  not  imputable  to  director  as  claimant,  84, 

note. 
Bloom's  Sup. —  25 


386  INDEX    TO    SUPPLEMENT. 

CORPORATION   (continued). 

officer's  acts  prohibited  by  by-laws  can  not  be  ratified,  84,  note, 
officers  of,  as  agents  of,  205,  note, 
power  to  enter  into  contract  of  suretyship,  211,  note, 
quasi-public,  lien  on  property  of,  81,  note, 
signature  of,  to  claim  of  lien,  147. 

COSTS. 

abstract  of  title,  296,  note, 
generally,  293  et  seq. 
on  appeal,  293,  note. 

apportionment  of,  293,  note. 

COTENANT. 
repairs  by,  167,  note,  168  note. 

COUNTERCLAIMS.     See  Offsets  and  counterclaims. 
COURT.     See  Jurisdiction. 

CRAFTSMAN. 

definition  of,  52,  note. 

i 

CROSS-COMPLAINT. 

summons  need  not  be  issued  on,  251,  note. 

CUMULATIVE  REMEDIES.     See  Remedies, 
at  law  and  in  equity,  228,  note, 
generally,  227. 
upon  express  and  implied  agreements,  227,  note. 

CUTTING  WOOD, 
in  mine,  lien  for,  71,  note. 

DAM. 
definition  of,  76,  note. 

DAMAGES.     See  Liquidated  damages, 
contract  to  deliver  materials,  49,  note, 
evidence  as  to,  263,  note,  264,  note, 
for  delay. 

as  to,  97,  note. 

caused  by  owner,  182. 

have  no  bearing  in  case  of  abandonment,  182,  183,  note. 

in  contemplation  of  parties,  182,  note. 

in  delivering  materials,  48,  note,  182,  note. 

in  performance,  182. 

in  transporting  materials,  48,  note. 


INDEX    TO    SUPPLEMENT. 

DAMAGES.     For  delay  (continued), 
generally,  97,  note, 
loss  of  rentals,  183,  note, 
owner  recouping,  against  subcontractor,  41,  note. 

DEATH.     See  Administrator,  Executor. 
of  contractor. 

obligations  of  surety,  upon,  215. 

surety  filing  claim  against  estate,  217,  note. 

presentation  of  claim,  39,  40. 
of  owner. 

presentation  of  claim,  35. 

DEBT. 

relation  of,  to  lien,  10. 

DECREE.     See  Judgment, 
as  to  balance  of  fund  may  not  object  to,  287. 
as  to  prior  and  subsequent  mortgages,  291. 
attack  on,  direct  and  collateral,  288,  note, 
effect  of,  as  to  subsequent  creditors,  288,  note, 
generally,  287  et  seq. 
in  consolidated  actions,  288. 

DEED  OF  TRUST.     See  Priorities, 
priority  of,  175. 

DEFECTS. 

latent  and  patent,  131,  note,  132,  note. 

DEFENSES.     See  Answer. 

DEFINITIONS.    See  Words  and  phrases, 
of  account,  144,  note, 
of  alteration,  69,  note,  70,  note, 
of  "alteration,  improvement,  repair,"  70,  note, 
of  architecture,  54. 
of  artificer,  52,  note, 
of  artisan,  51,  note, 
of  "bestow  labor,"  37. 
of  block,  73,  note, 
of  bond,  213,  note. 
of  building,  76,  note. 

of  "build  or  rebuild,"  68,  note,  70,  note,  73,  note, 
of  claimants,  28,  note, 
of  coal  mine,  78,  note, 
of  conduit,  76,  note. 


387 


388  INDEX    TO    SUPPLEMENT. 

DEFINITIONS    (continued), 
of  constructed,  69,  note, 
of  construction,  69,  note.  ^ 

of  "construction,  alteration,  Improvement  or  repair,"  69,  note, 
of  "construction  and  repair  work,"  69,  note, 
of  "contract  work,"  31,  note, 
of  craftsman,  52,  note, 
of  dam,  76,  note. 
of  "employer  of  labor,"  53,  note. 
of  "frame  building,"  76,  note, 
of  furnished,  45,  note, 
of  giant-powder,  46,  note, 
of  grading,  67,  note,  72,  note, 
of  improve,  68,  note,  69,  note,  70,  note,  73,  note, 
of  improvement,  68,  note. 

of  "improvement  of  land,"  68,  note,  73,  note,  76,  note, 
of  improvements,  75,  note,  76,  note. 
of  "to  inure,"  109,  note,  212,  note, 
of  labor,  51,  note. 
of  laborer,  51,  note, 
of  "labor  upon  a  mine,"  70,  note, 
of  lot,  78,  note, 
of  machine,  77,  note, 
of  mine,  78,  note, 
of  mining,  78,  note, 
of  mining  claims,  78,  note, 
of  "new  construction,"  69,  note,  70,  note, 
of  nitroglycerine,  46,  note, 
of  "other  person,"  51,  note, 
of  owner,  178,  note. 

of  "person  doing  contract  work,"  51,  note, 
of  plan,  62. 
of  primings,  92,  note, 
of  privity,  30,  note, 
of  property,  75,  note,  158,  note, 
of  "provisions  and  supplies,"  49,  note, 
of  rebuild,  73,  note, 
of  reconstruction,  70,  note, 
of  "repair  and  alteration,"  69,  note,  70,  note, 
of  "repair  and  alteration  of  mine,"  72,  note, 
of  "repair  and  improve,"  69,  note,  70,  note,  73,  note, 
of  specifications,  62. 
of  street,  78,  note, 
of  subcontractor,  36. 
of  supplies,  49,  note, 
of  team,  46,  note. 


INDEX    TO    SUPPLEMENT. 

DEFINITIONS  (continued), 
of  tunnel,  77,  note, 
of  workman,  51,  note. 

DELAY.  See  Damages, 
damages  for,  97,  note, 
of  other  contractor,  liability  of  owner  for,  92,  note. 

DELIVERY  OF  MATERIALS.     See  Materials. 

DEMAND, 
statement  of.    See  Claim  of  Lien. 

DEMURRER, 
general. 

as  to,  246,  247. 

as  to  alleging  "valid  liens,"  248,  note. 

as  to  contents  of  claim  of  lien,  247,  note. 

as  to  damages,  246,  note. 

as  to  prematurely  filed  claim  of  lien,  246. 

as  to    written  agreement  for  abritration,  246,  note, 
generally,  246  et  seq. 
joint,  246,  note, 
special. 

addressed  to  complaint  generally,  247. 

as  to  ambiguity  and  uncertainty,  247,  note. 

as  to  amount  "due  and  owing,"  248,  note. 

as  to  failure  to  allege  non-payment,  247. 

as  to  misjoinder  of  causes  of  action,  247,  note. 

as  to  uncertainty,  247,  note. 

generally,  247  et  seq. 

DEPARTURE    IN    PLEADING.      See    Pleading. 

DEPOSIT   INTO   COURT. 

generally,  277. 

on  condemnation  proceedings,  278,  note. 

payment  of  balance,  278. 

right  to  withdraw,  191,  note. 

substitute  for  land,  191,  note,  192,  note. 

DESCRIPTION   OF   PROPERTY.     See  Claim  of  lien. 

DESTRUCTION  OF  BUILDING.     See  Destruction  of  work, 
as  to,  38. 
no  lien,  6. 
subcontractor's  lien,  161. 


389 


390  INDEX    TO    SUPPLEMENT. 

DESTRUCTION    OF    WORK.     See   Owner,   Contractor,    Destruction 

of  building, 
liability  upon,  189,  190. 

DEVELOPMENT. 
Hen  for,  in  mine,  9,  'note, 
of  coal  mine,  lien  for,  71,  note, 
of  mine,  lien  for,  52,  note,  70. 
of  water,  71,  note. 

DEVISEE, 
putting  in  place  material  of  uncompleted  structure,  83. 

DIFFICULTY, 
of  compliance  with  statute,  5,  note. 

DIRECT    LIEN. 

apportionment  may  be  denied  under,  287. 
in  California  Amendments  of  1911,  5,  112,  note, 
in  Idaho,  5,  note, 
in  Kansas,  5,  note, 
in  Kentucky,  5,  note, 
in  New  Mexico,  5,  note. 

offsets  and  counterclaims,  in  case  of,   180,  note,   181,  note, 
pleading,  allegation  as  to  contract  with  owner  or  agent,  241. 

not  necessary  to  show  indebtedness  of  owner,  240. 
under  void  statutory  original  contract,  194. 

DIRECTOR.     See  Corporation. 

DISMISSAL  OF  ACTION, 
as  to,  275,  note. 

DITCH, 
lien  on,  76,  note,  Treatise  142. 

DIVISION    OF   OBJECTS. 
California,  under  Amendments  of  1911,  75,  note. 

DRAYMEN, 
lien  of,  California  Amendments  of  1911,  69,  note. 

DUAL    NATURE, 
of   California  statute,   5. 

DUPLICATE, 
exact,  112,  note. 

DUPLICATE   STATEMENT. 
Colorado,  not  required  as  to  bond,  under  Laws  1909,  201,  note. 


INDEX    TO    SUPPLEMENT. 


391 


DUPLICATE  STATEMENT  (continued). 
Washington,  necessity  for,  196,  note,  197,  note.     See  Washington. 

purpose  of,  197,  note, 
requirement  of,  constitutional,  21,  note. 

EARTH. 

falling  on  property,  implied  agreement  as  to,  92,  note. 

ELECTRIC. 

Code,  National,  sufficiency  of,   63,  note, 
fixtures,  as  object  of  labor,  79,  note, 
wiring. 

as  to,  79,  note. 

specifications  as  to,  63,  note. 

ELECTRICITY. 

lien  for,  45,  note. 

EMBANKMENT, 
definition  of,   76,   note. 

EMPLOYER.     See  Owner. 

generally,   178   et   seq. 

of  labor,  definition  of,  53,  note. 

EMPLOYMENT. 

hours  of,  22,  note. 

ENFORCEMENT   OF   LIEN.     See  Actions, 
as  to,  11,  note, 
legislature  may   fix  time   of,   under   constitutional   provision,   20, 

note, 
legislature   to   determine   method   of,   4. 

ENGINEER.     See   Architect,   Chief-engineer, 
as  to  power  to  accept  work,  56. 
as  to  power  to  change  contract,  56. 
as  to  power  to  determine  meaning  of  contract,  56. 
as  umpire,  58. 

construction  of  contract  as  to  powers  of,  91,  note, 
dual  relation  of,  58. 
duty. 

as  arbiter,  not  to  be  delegated,  60. 

as  to  certificates,  acceptance  and  estimates,  59. 

in  extensive  works,  60. 

to  inform  himself  personally  as  to  facts,  59. 

to  inspect  work,  58. 

excuse   for   failure   to,   58. 


392  INDEX    TO    SUPPLEMENT. 

ENGINEER  (continued), 
fraud  of,  59,  60. 
not  to  rely;  entirely  on  statements  of  subordinates,  60. 

ENTIRE   CONTRACT, 
general  rule  as  to,  92,  note. 

ESTIMATES.     See  Architect, 
duty  of  architect  to  furnish,  61. 

how  stipulation  for,  must  be  expressed  in  contract,  96,  note, 
object  of  provision  in  contracts  for,  96. 
overthrown  only  for  fraud,  97,  note, 
provision  in  contract  for  engineer's,  how  regarded,  96. 

ESTOPPEL. 

as  to,  92,  note. 

as  to  location  of  plant,  264,  note. 

as  to  street  grading,  265,  note. 

as  to  ultra  vires,   265,  note,   266,   note. 

basis    of   doctrine    concerning   notice   of    non-responsibility,    161. 

by  inducing  subsequent  deliveries,  264,  note. 

evidence  of,  264,  note,  265. 

of    owner. 

as  to  filing  claim  of  lien,  131. 

as  to  objections  to  filing  claim  in  time,  265. 

by  misstatements  as  to  description  of  property,  146. 

by  statements  as  to  completion,  154,  265. 

to  set  up  damages,  265,  note, 
of  state,  as  to  performance  of  contract,  265,  note, 
pleading,  238. 
principles  of  equitable,  167,  note. 

ESTATES  AND  INTERESTS, 
subject  to  liens,  by  contract,  163  et  seq. 
by  estoppel,  167  et  seq. 

EQUITY, 
jurisprudence,  mechanics'  liens  unknown  to,  1,  note. 

EQUIVALENTS  OF  COMPLETION.     See  Claim  of  lien, 
for  filing  claims,  155,  156. 

EVIDENCE.     See  Expert,  Parol  testimony, 
admissibility  of  survey,  254,  note, 
admission  of,  rule  as  to,  253,  note, 
admissions.     See    Admissions, 
as  to  damages,   263,   note,  264,  note. 


INDEX    TO    SUPPLEMENT. 


393 


EVIDENCE  (continued), 
as  to  delivery  of  electricity,  266,  note, 
as  to  extra  work,  261,  note, 
as  to  liquidated  damages,  263,  note. 

as  to  materials,  entries  in  books  to  prove  delivery,  266,  note, 
as  to  materials,  use  and  delivery  of,  266,  note, 
as  to  use  of  materials,  to  prove  that  they  were  furnished  to  be 

used,  266,  note. 

best  evidence,  receipts  as,  256,  note, 
books   of  account,   255. 
burden  of  proof.     See  Burden  of  proof, 
certificate  as,  259,  note.     See  Certificate, 
claim  of  lien.     See  Claim  of  lien. 

admission  of,  260. 

as  evidence,  260. 

competency  of,  260. 

failure  to  formally  introduce,  261,  note. 

merely  evidence,  135,  note. 

not  competent  to  prove,  what,  260,  note. 

objections  to  introduction  of,  260. 
when  must  be  raised,  261,  note, 
competency  of,  as  to  agency,  257. 
effect  of  absence  of  books  of  account,  255,  note, 
exclusion  of,  when  owner  not  in  position  to  claim  strict,  253. 
expert.     See  Expert. 

as  to  amount  of  work  done,  263,  note. 

as  to  lack  of  lateral  support,  263,  note. 

as  to  value,  269. 

as  to  weakening  wall,  263. 

as  to  whether    claimant    is    entitled    to    final    certificate,    263, 
note. 

generally,   263,   note, 
generally,   253  et  seq. 

hearsay,  as  to  quality  of  materials,  266,  note, 
inadmissible  under  common   count,   as   to  performance   in   time, 

when,  264. 

in  rebuttal,  as  to  work  up  to  abandonment,  259,  note, 
judicial   notice.     See  Judicial    notice, 
letters  as,  253,  note. 
of  contractors  as  to  sufficiency  of  plans  and   specifications,   65, 

66. 

of  estoppel,  264,  note,  265.     See  Estoppel, 
of  payment,  253,  note.     See  Payment, 
of  value,  268,  269.     See  Value, 
parol. 

as  to  lines  of  grading,  262,  note. 


394  INDEX    TO    SUPPLEMENT. 

EVIDENCE.     Parol  (continued). 

general  rule  as  to  exclusion  of,  regarding  repairs,  262,  note. 

improperly  admitted,  when  not  prejudicial,  262,  note. 

modifications  of  written  contract,  261. 

that  plans  and  specifications  were  to  be  part  of  contract,  262. 
plans  and  specifications,  evidence  of  contractors  as  to  sufficiency 

of,  65,  66. 
presumptions.     See  Presumptions. 

as  to  furnishing  materials  for  use  in  building,  266,  note, 
questions  of  fact.     See  Questions  of  fact. 

what  are,  267. 
questions  of  law.     See  Questions  of  law. 

what  are,  267,  268. 

required  to  support  denied  allegations,  253,  note, 
use  and  delivery  of  materials,  43,  note. 

EVOLUTION. 
of  Utah  statute,  3,  note. 

EXCAVATION. 

contract  silent  as  to  amount  of,  91,  note, 
in    streets,    regulations    concerning,    54,    note. 

EXECUTION. 
against   contractor's    estate   not   affected    by    prior   judgment   of 

owner  against  contractor's  estate,  186. 
issuance  of,  298,  note, 
on    behalf    of    subclaimants    against    indebtedness    of    owner    to 

contractor,   298. 
proceedings   supplementary    to,   on   behalf   of   sublien    claimants, 

298,  note. 

EXECUTOR.     See  Administrator,  Death, 
not  to  complete  house  in  course  of  erection,  devised,  83. 
not  to  do  new  work,  testator  was  not  bound  to  do,  83. 

EXPERT.     See  Evidence.  . 

builder  as,  as  to  cost  of  repairs,  269,  note. 

contractor  and  builder  as,  to  lack  of  lateral  support,  263,  note, 
generally,  263,  note, 
owner  as,  as  to  value,  269,  note. 

EXTENT  OF  LIEN.     See  Limitations  on  liens,  Convenient  use  and 

occupation. 

as  to  appurtenances,  158,  note, 
as  to  independent   structure,   158,   note, 
as  to  logger's  lien,  158,  note. 


INDEX    TO    SUPPLEMENT. 


395 


EXTENT  OF  LIEN    (continued). 

as  to  mine,  for  work  on  mill,   159,  note. 

generally,  158  et  seq. 

land   for  convenient   use  and  occupation,   question  of   fact,   254, 
note. 

Montana,  in  case  other  than  mine,  159,  note. 

of  contractor's  materialman,  49. 

of  subcontractor,  36,  40,  note, 
owner  may  contest,  178,  note. 

of  subcontractor's  materialman,  49. 

of  subcontractor,  on  destruction  of  building,  161. 

on  entire  railroad,  159,  note. 

on  mining  claims,  general  principles,  160,  note. 

on  power  and  irrigation  plant,  160,  note. 

subcontractor's,    original    contract    incorporated    in    subcontract, 
161. 

vendor's   notice   of   non-responsibility,    170.     See    Notice   of    non- 
responsibility. 

EXTRA  WORK. 

abandonment  by  contractor  for  proper  refusal  to  pay  for,  99. 

evidence  as  to,  261,  note. 

meeting  of  minds  regarding,  89,  note. 

ordered  by  architect,  99,  note. 

provided  for  in  contract,  99,  100. 

provision  in  public  contract  as  to,  101,  note. 

reasonable  value  of,  recoverable,  100. 

under  public  contract,  99,  note. 

FAVORED   LIEN. 

mechanic's  lien  a,  4. 

FEDERAL   COURTS. 

foreclosure  of  lien  in,  231,  232. 

FILING.    See  Claim  of  lien, 
claim  of  lien,  time  of,  not  extended  by  trifling  imperfections,  127. 

note. 

contract.     See   Contract, 
modifications  of  original  contract,  13,  note, 
plans  and  specifications,  114.     See  Plans  and  Specifications, 
statutory    original    contract,    113,    note.     See    Statutory    original 

contract. 

FILLING. 

street,  lien  for,  73,  note. 


396  INDEX    TO    SUPPLEMENT. 

FILTRATION   PLANT, 
contract  for,  84,  note. 

FINAL  PAYMENT."    See  Offsets  and  counterclaims, 
not  to  be  prejudiced,  181. 

on  abandonment  of  valid  statutory  original  contract,  not  applicable 
to  liens,  181. 

FINDINGS. 

as  to  abandonment,  283,  note, 
as  to  agency,  286,  note, 
as  to  amount  remaining  unpaid,  283. 
as  to  completion,  284. 
construction  of,  305,  note. 

as  to  knowledge  of  owner,  285. 
contradictory,   285. 

as  to  filing   contract,   285. 

as  to  promise  to  pay,  285. 
defective,  283. 
failure  to  request,  in  Colorado,  305,  note. 

in  Washington,  305,  note, 
generally,  282  et  seq. 
in  consolidated  actions,  285,  note, 
issues  to  be  found  upon,  282,  283. 
object  of,  282.  ; 

of  ultimate  facts,  284. 
on  immaterial  issues,  284. 

presumption  in  favor  of,  upon  appeal,  282,  note, 
rules  as  to,  282. 

supported  by  admissions  of  contractor,  254,  note, 
to  cover  entire  issue,  283. 
upholding,  on  appeal,  304,  note. 

FIRE  LIMITS, 
ordinance  concerning,  22,  note,  54,  note. 

FIXTURES.     See  specific  fixtures. 
as  between  mortgagee  and  mortgagor,  79,  note, 
building  as,  7,  note,  79,  note, 
cells  in  jail  as,  79,  note, 
electric,  79,  note, 
generally,  79,  note, 
in  mines,  47,  note, 
mining  machinery  as,  80,  note, 
no  lien  upon,  as  personality,  79,  note, 
tools  as,  on  mine,  80,  note. 


INDEX    TO    SUPPLEMENT. 


397 


FLUME, 
lien  on,  142. 

FORECLOSURE  OF  LIEN, 
action  for,  equitable,  11,  note, 
in  Federal  Courts,  231,  232. 

FOREIGN    CORPORATION.      See   Corporation, 
as  claimant,  28,  note,  83,  note. 

FOREMAN. 

in  mine,  as  to  lien  of,  52,  note,  71,  note. 

FORFEITED    INTERESTS. 

lien  on,  165,  note,  166,  note. 

FORFEITURE, 
of   lien. 

by  changed  law,  224,  note. 

generally,  224  et  seq. 

of  constitutional  mandatory  lien,  20,  note. 

FORMS. 

agreement  of  surety  to  complete  building,  construed,  311,  note. 

answer,  tender  in,  construed,  313,  note. 

bond. 

condition  as  to  furnishing  labor  and  materials,  and  payments, 
311,  note. 

contractor  to  replace  certain  work,  311,  note, 
complaint,  to  foreclose  lien  to  construct  cistern,  313,  note, 
contract. 

clause,  contractor  saving  owner  from  liens,  311,  note. 

clause  for  doing  work  under  direction  of  engineer,   310,  note. 

clause  for  liquidated  damages,  309,  note. 

clause  requiring  contractor  to  deliver  free  of  liens,  310,  note_ 

clauses  as  to  alterations,  309,  note. 

clauses  as  to  certificates,  309,  note. 

clauses  as  to  decision  of  engineer  to  be  final,  309,  note. 

clauses  as  to  delay,  construed,  309,  note. 

clauses  construed,  308,  note,  309,  note,  310,  note. 

for  construction,  311,  note. 

for  excavating  and  blasting,  construed,  311,  note. 

for  sinking  well,  308,  note. 

of  American  Institute  of  Architects  and  National  Association 
of  Builders,  construed,  310,  note. 

owner  agreeing  to  provide  labor  and  materials,  311,  note. 

to  clear  right  of  way  of  railroad,  311,  note. 


398  INDEX    TO    SUPPLEMENT. 

FORMS  (continued), 
generally,  308  et  seq. 

notice  of  non-responsibility,  California,  311,  312. 
notice  to  municipality,  construed,  313,  note, 
notice  to  school  district,  313,  note, 
release  of  lien,  construed,  313,  note. 

specifications  for  construction  of  water  system,  310,  note, 
verification  to  notice  of  non-responsibility,  California,  312. 

FOUNDATION, 
specifications  as  to,  63,  note. 

FRAME   BUILDING, 
in  ordinance,  meaning  wooden  building,  76,  note. 

FRAMING  TIMBER, 
in  mine,  lien  for,  71,  note. 

FRAUD. 
in  contract,  of  school  district  trustee,  89,  note. 

FUND. 

contract  price  as,  38,  note. 

garnishment  proceeding  against,  equitable,  12,  note, 
lien  upon,  status  of,  6. 
payment  of  balance,  278. 

FURNISH, 
receipted  bills,  provision  to,  103,  note. 

FURNISHED, 
definition  of,  45,  note. 

FURNISHING  LABOR, 
distinguished  from  labor  performed,  Treatise,  117,  note. 

FURNISHINGS, 
contract  for,  of  public  corporation,  84,  note. 

FUSE. 
as  to  lien  for,  46,  note. 

GARNISHMENT.      See    Execution. 

failure  to  present  claims  to  administrator  after  execution,   209. 
proceeding  on  fund,  equitable,  12,  note. 

GAS    GENERATORS, 
as  object  of  labor,  77,  note. 


INDEX    TO    SUPPLEMENT. 


399 


GIANT   POWDER. 

definition  of,  46,  note. 

GOOD   AND   WORKMANLIKE    MANNER, 
construed,  93,  note. 

GRADING. 

definition  of,  67,  note,  72,  note. 

done  without  authority  or  consent  of  owner,  171,  note, 
street,  lien  for,  73,  note. 

GUARDIAN. 

claim  of  lien  of,  28,  note. 

HARNESS. 

furnishing  to  contractor,  68,  note, 
let  to  contractor,  45,  note. 

HAULING. 

lien  for,  69,  note. 

HEATING  PLANT. 
warranty  as  to  efficiency  of,  93,  note. 

HOMESTEAD. 

priority  with  reference  to  mechanics'  liens,  25,  note. 

HORSES. 

furnishing,  to  contractor,  45,  note,  68,  note, 
taking  care  of,  on  mine,  73,  note. 

HOURS  OF   EMPLOYMENT. 

in  mines,  52,  note. 

HOUSE.     See   Building, 
as  movable  fixture,  80,  note. 

HUSBAND.     See  Agency,  Wife, 
as  agent  of  wife,  163,  note, 
interest  of,  also  bound,  163,  note. 

IDAHO. 

direct  lien  in,  5,  note. 

ILLEGALITY. 

of  plans  and  specifications,  effect  of,  on  recovery  of  architect,  66. 

IMPERFECTIONS. 

trifling,  in  performance,  rules  for  recovery,  when,  127,  note,  128, 
note. 


400  INDEX    TO    SUPPLEMENT. 

IMPLIED. 

agreement  to  pay  for  labor  and  materials,  93,  note, 
contract,  rules  for  recovery  on,  127,  note,  128,  note, 
covenant,   as   to   Continuance   of   building   in   existence,    no,   93, 
note. 

IMPROVE, 
definition  of,  68,  note,  69,  note,  70,  note,  73,  note. 

IMPROVEMENT, 
definition  of,  68,  note. 

IMPROVEMENT  OF  LAND, 
definition  of,  68,  note,  73,  note,  76,  note, 
development  of  coal  mine  is,  71,  note. 

IMPROVEMENTS, 
definition  of,  75,  note,  76,  note, 
"other  aforesaid,"  meaning  of,  76,  note. 

INDEPENDENT  CONTRACTOR, 
distinction  as  to,  29,  note,  31,  note. 

INDEXING, 
contract,  duty  of  officer  as  to,  113,  note. 

INDIRECT  LIEN.     See  Direct  lien, 
adjustment  of  rights  under,  40. 
in  California  statute,  6. 

INJUNCTION, 
against  sale  of  property,  229,  note,  298,  note. 

INSPECTION, 
of  building,  275,  note. 

INSTRUCTIONS, 
generally,  279,  note, 
various,  279,  note. 

INSTRUCTIONS  TO   BIDDERS, 
duty  of  architect  as  to,  61,  64. 

INSURANCE. 

lienors  have  no  claim  on,  when  assigned  to  mortgagee,  209. 
no  subrogation  to  rights  of  claimants  by  payment  of,  by  insurance 
company,  225,  note. 

IN    REM. 
actions  to  foreclose  lien  are,  11,  note. 


INDEX    TO    SUPPLEMENT. 

INTEREST. 

as  against  subsequent  holder  of  deed  of  trust,  288. 

as  to,  192,  note. 

constitutionality  of  allowance  of,  24. 

from  filing  of  lien  notice,  289,  note. 

INTERVENTION. 

bringing  in  other  parties,  279,  note. 

INTERPLEADER. 

right  of  owner  as  to,  192,  note. 

INURE. 

definition  of,  109,  note,  212,  note. 

INVALIDITY, 
of  statutory   original    contract.      See   Statutory   original    contract. 

IRRIGATION   PLANT. 

extent  of  lien  on,  160,  note. 
JAIL. 

cells  in,  as  fixtures,  79,  note. 

JOINDER. 

of  causes  of  action,  245,  note. 

JUDGMENT.     See   Decree. 

against  sureties  in  action  to  foreclose  lien,  287,  note. 

allowing  attorneys'  fees,  when  provision  unconstitutional,  294. 

deficiency,  298,  note. 

for  provisional  lien,  287,  note. 

foreclosing  lien,  not  money  judgment,  287,  note. 

interest  allowed  in,  as  against  subsequent  holder  of  deed  of  trust, 

288.     See  Interest, 
of  dismissal,  summary,  287,  note, 
of  original  contractor  against  owner,  levy  by  subclaimants  upon, 

298. 
personal. 

against  contractor,  on  general  accounts,  can  not  be  had,  with- 
out issues,  290,  note. 

in  favor  of  materialman,  34. 

in  favor  of  subcontractor,  34. 
quieting  title,  protecting  lien,  287,  note, 
setting  aside,  275,  note, 
without  jurisdiction  of  person,  287,  note, 
with  reference  to  prior  and  subsequent  mortgages,  175,  176. 

Bloom's  Sup. — 26 


402  INDEX    TO    SUPPLEMENT. 

JUDICIAL  NOTICE, 
not  taken  of. 

building  ordinances,  256. 

manner  of  construction  of  buildings  in  particular  place,  256. 

municipal  ordinances,  256. 

purpose  of  building  in  certain  place,  256. 

records  of  other  cases  pending  or  tried  before  court,  256. 
taken   of. 

city  charters  which  are  state  laws,  255. 

holidays  following  earthquake  and  fire  of  April  18,  1906.  256. 

line  of  railroad,  255. 

streets,  boundaries,  and  their  relation,  in  cities,  255. 

JURISDICTION.     See  Judgment, 
of  District  Court,  231. 
of  person,  21,  note, 
of  Superior  Court,  26,  231. 
of  Supreme  Court,  equity  case,  27,  note. 

JURY    TRIAL. 

special  issue,  279,  note. 

JUS  AD  REM. 
lien  not,  5,  note. 

JUS  IN   RE. 

lien  not,  5,  note. 

KANSAS, 
direct  lien  in,  5,  note. 

KENTUCKY, 
direct  lien,  in,  5,  note. 

KINSHIP, 
between  various  state  statutes,  8. 

KNOWLEDGE.      See   Notice   of   non-responsibility. 
of  owner,  regarding  notice  of  non-responsibility,  168,  169. 

LABOR. 

cooking  for  employers  at  mine,  74,  note, 
for  which  a  lien  is  given. 

blasting,  73,  note. 

California,  under  amendments  of  1911,  67,  67,  note,  68,  note. 

clearing  sagebrush  from  railroad  right  of  way,  73,  note. 

hauling,  69,  note.    See  Team. 


INDEX    TO    SUPPLEMENT.  403 

LABOR.     For  which  a  lien  is  given   (continued), 
in    mine. 

building  roadway  to  mill,  71,  note, 
constructing  and  operating  mill,  71,  note, 
cutting  cordwood  for  fuel,  71,  note, 
nature  of,  52,  note,  70. 
roustabout,  73,  note, 
working  in  boarding  house,  74,  note, 
nature  of,  in  development  of  water,  71,  note, 
shoveling,  73,  note, 
railroad  construction,  73,  note, 
superintendence,  73,  note, 
in  Sunday  law,  51,  note, 
object  of. 

cistern,  77,  note, 
gas  generators,  77,  note, 
laundry  plant,  77,  note, 
railroad,  77,  note, 
sawmill,  77,  note, 
woodworking  plant,  77,  note, 
on  fixtures,  144,  note.     See  Fixtures, 
taking  care  of  horses  on  mine,  73,  note, 
"upon  a  mine,"  definition  of,  70,  note. 

LABORER. 

contractor's,  time  of  filing  claim,  153,  note.     See  Claim  of  lien, 
definition  of,  51,  note, 
general  rights  of,  52. 
personal  judgment  in  favor  of,  52. 
subcontractor's,  lien  of,  51,  note,  52. 

not  affected  by  obligations  between  contractor  and  subcontractor, 
52. 

LATENT, 
defects,  131,  note,  132,  note. 

LATERAL  SUPPORT. 

expert  evidence  as  to  lack  of,  263,  note, 
right  of,  187,  note. 

LATHING. 

lien   for,   52,   note. 

LAUNDRY  PLANT. 

as  object  of  labor,  77,  note. 


404  INDEX    TO    SUPPLEMENT. 

LEASE. 

not  void  by  reason  of  illegal  construction,  82,  note. 
LEGISLATURE, 
to  determine  method  of  enforcement  of  lien,  4. 

LESSEE, 
as  agent  of  owner,  165,  note,  168,  169. 

LESSOR. 

interest  of,  when  bound  by  lien,  165,  note. 

of  means  or  appliances  of  construction,  no  subcontractor,  37. 
LIEN.     See  Mechanic's  lien. 

extent  of,  of  original  contractor,  29,  note. 

loss  of,  by  subcontractor,  38,  note. 

none  on  fixture,  as  personality,  79,  note. 

not  attachable  to  improvement  apart  from  interest  in  land,  79, 
note. 

of  subclaimants,  not  affected  by  obligations  between  contractor 
and  subcontractor,  29. 

relation  of,  to  debt,  10. 

right  to,  dependent  upon  what,  38. 

LICENSE. 

tax  on  contractor,  22,  note, 
to  explore  for  minerals,  164,  note. 

LIME  KILN, 
lien  for  labor  in,  70,  note. 

LIMITATIONS  ON    LIENS.     See  Extent  of  liens, 
estates  and  interests  subject  to  liens, 
acquirement  of  other  interests  by  wife,  163,  note, 
by  contract. 

estate  for  life  or  years,   164,  note, 
forfeiture  of  contract  of  sale,  165,  note, 
generally,  163  et  seq. 

homestead  of  Chickasaw  Indian,  166,  note, 
interest  of  lessee  of  school  lands,  164,  note. 

of  person  in  possession  claiming  title,  164,  note, 
leasehold  and  other  interest,  163,  note, 
lessor's  interest,  165,  note, 
mere  knowledge  or  permission  of  vendor  as  to  construction  by 

vendee,  164,  note,  165,  note, 
mortgagor's  right  of  redemption,  164,  note, 
necessity   of   claimant's   ascertaining   interest   of   party   con- 
tracting, 164,  note. 


INDEX    TO    SUPPLEMENT.  4Q5 

LIMITATIONS  ON  LIENS.     Estates  and  interests  subject  to  liens. 

By  contract  (continued), 
oil  and  gas  lease,  conveying  no  present  vested  interest,  165, 

note. 

on  forfeited  interests,  166,  note, 
option,  165,  note, 
repairs  by  lessee,   lien   subject   to   conditions   of   lease,   165, 

note, 
rights  held  under  Carey  Act,  for  construction  of  canal,   163, 

note. 

tenancy  from  month  to  month,  164,  note, 
title  subject  to  be  defeated  upon  condition  subsequent,  163, 

note. 

vendor's  and  vendee's  interests,  164,  note. 
by  estoppel. 

generally,  167,  note  et  seq. 

when  lessee  directs  repairs  ordered  by  lessor,  168,  note, 
when  owner  has  a  mere  expectation  of  construction,  168. 

note. 

interests  of  husband  and  wife,  163,  note,  164,  note, 
no  lien  upon  mere  option,  163,  note, 
possessory   interest   subsequently    merged    in    legal    title,    164, 

note. 

generally,  158  et  seq. 
priorities,  generally,  173  et  seq.     See  Priorities. 

LIQUIDATED  DAMAGES. 

generally,  97,  note, 
waiver  of,  97,  note. 

LIS   PENDENS. 
as  to,  233,  note. 

LOCKS  OF  CANAL. 

as  part  of  highway,  77,  note,  80,  note. 

LOGGING. 

lien  for,  52,  note. 

LOGS. 

description  of,  145,  note. 

LOT. 

definition  of,   78,  note. 

MACHINE. 

definition  of,  77,  note, 
warranty  as  to,  93,  note. 


406  INDEX    TO    SUPPLEMENT. 

MACHINERY, 
mining,  as  fixture  on  mine,  80,  note. 

MACHINIST, 
who  not  a,  52,  note. 

MANAGER, 
of  mine,  lien  of,  71,  note. 

MANUAL    LABOR, 
in  mine,  71,  note. 

MARSHALLING   ASSETS, 
doctrine  of,  when  applies,  177. 

MASONRY, 
below  ground,  specifications  as  to,  63,  note. 

MATERIAL-MAN.     See   Subcontractor's    material-man,    Materials, 
contract  of. 

as  to,  42,  note. 

need  not  to  be  in  writing,  43,  note. 

non-essentials,  43,  note. 

use  of  materials,  43,  note, 
contractor's,  time  of  filing  claim,  153,  note, 
extent  of  lien  of  contractor's,  49. 

of  subcontractor's,  49. 

failure  to  pay  occupation  license,  48,  note, 
knowledge  of  character  of  improvements,  43,  note. 

of  use  of  materials,  44,  note, 
owner's,  time  of  filing  claim,  153,  note, 
personal  judgment  in  favor  of,  34,  49,  note, 
when   title   to   material   passes   from,   33. 
who  is  a,  46,  note. 

MATERIALS.     See  Various  classes  of   materials,   Material-man, 
appliances,  45,  note, 
building  as,  46,  note, 
camp  equipment,  as  to,  45,  note, 
caps,  46,  note. 

damages,  breach  of  contract  to  deliver,  49,  note, 
electricity,  45,  note. 

evidence  of  delivery  and  use,  43,  note.     See  Evidence, 
for  paving  streets,  45,  note. 

furnished  under  different  original  contractors,  266,  n6te. 
fuse,  46,  note, 
harness,  45,  note. 


INDEX    TO    SUPPLEMENT.  4Q7 

MATERIALS  (continued), 
horses  as,  45,  note. 

knowledge  of  use  of,  by  materialman,  44,  note, 
measurement  of,  before  placing  in  situ,  93,  note, 
place  of  delivery  of,  44,  note, 
power,  45,  note. 

powder,  46,  note,  Treatise,  p.  90. 

right  to,  upon  abandonment,  184,  185.     See  Abandonment, 
sale  of,  46,  note, 
sold  to  be  used,  43,  note. 

sold  in  one  state  for  use  in  another,  9,  note,  43,  note, 
"supplies"  broader  term  than,  49,  note, 
tiling,  42,  note, 
tools,  45,  note, 
use  of,  44,  note. 

evidence  as  to  delivery  and,  266,  note. 

MECHANIC. 

definition  of,  52,  note. 

MECHANIC'S  LIEN.     See  Lien. 

a  favored  lien,  4. 

at  common  law,  unknown,  1,  note. 

creature  of  statute,  9,  note. 

enforcement  of,  11,  note. 

equity  jurisprudence,  unknown  to,  1,  note. 

law,  for  whose  benefit  enacted,  4,  note. 

mortgage  and,  compared,  11,  note. 

statutory  right,  9,  note. 

MEMORANDUM, 
of  statutory  original  contract. 

abolished  by  California  amendments  of  1911,  115,  note, 
failure  to  file,   113,  note. 

MILL. 

in  mine,  lien  for  constructing  and  operating,  71,  note, 
mine   as   necessary   for  convenient   use   and   occupation   of,    159, 
note. 

MINE   AND    MINING   CLAIM.     See   Mining   claim, 
as    necessary    for    convenient    use    and    occupation    of   mill,    159, 

note. 

coal,  definition  of,  78,  note, 
cooking  for  employers  at,  74,  note, 
definition  of,  78,  note, 
development  of,  lien  for,  52,  note. 


408  INDEX    TO    SUPPLEMENT. 

MINE  AND  MINING  CLAIM    (continued), 
fixtures  In  connection  with,  47,  note, 
labor  in.  .- 

by  subtractive  process,  70. 

breaking  ground,  lien  for,  71,  note. 

development  of,  70. 

extracting  ore,  lien  for,  71,  note.  .' 

lien  limited  to  development  of  improvement  of,  9,  note, 
mining  machinery  as  fixtures  on,  80,  note. 

nature  of  labor  for  which  lien  is  given  in,  52,  note.     See  Labor, 
preparing,  to  be  left  without  caretaker,  no  lien  for,  72,  note, 
"repair  and  alteration  of,"  72,  note, 
roustabout  on,  lien  of,  73,  note, 
taking  care  of  horses  on,  73,  note, 
well-cleaner  on,  lien  of,  73,  note, 
working  by  subtractive  process,  lien  for,  52,  note, 
working  in  boarding  house  in,  lien  for,  74,  note. 

MINING, 
definition  of,  78,  note. 

MINING  CLAIM.     See  Mine  and  Mining  Claim, 
definition  of,  78,  note, 
extent  of  lien. 

general  principles,  160,  note. 

Montana,  160,  note. 

Utah,  160,  note. 

on  public  land,  property,  75,  note, 
possessory  right,  for  mining  oil,  78,  note. 

MISTAKE. 

in  claim  of  lien,  wrong  block,  146,  note.    See  Claim  of  litn. 
unilateral,  in  contract,  89,  note. 

MODIFICATION. 

of  contract.     See   Alteration,   Contract, 
burden  of  proof  on  contractor,  124,  note, 
by  parol,  261. 

generally,  123,  note.     See  Contract, 
pleading,  236,  note, 
of  statutory  original  contract,  failure  to  file,  113,  note. 

MONEY, 
paid  for  materials,  lien  for,  46,  note. 

MONTANA, 
extent  of  liens  on  mining  claims,  160,  note. 


INDEX    TO    SUPPLEMENT.  4Q9 

MORTGAGE. 

debt  not   due,   how   provided   for   on   foreclosure   of   mechanics' 

liens,  175,  176. 

decrees  as  to  prior  and  subsequent,  291. 
mechanics'  lien  and,  compared,   11,  note, 
prior  and  subsequent,  priorities  of  to  mechanics'  liens,  175,  176. 

MORTGAGEE. 

assignment  of  insurance  to,  209. 

recovery  from  owner  of  liens  paid,  209,  note. 

MUNICIPAL  CONTROL. 

over  building,  27. 

MUNICIPAL  ORDINANCES. 

knowledge  of,  required  of  architect,  54. 

MUNICIPALITIES. 

application  of  constitutional  provision  to,  18. 
power  of,  to  do  street  work,  84,  note. 

NAMES.     See  Claim  of  lien, 
common  law  right  to  change,  140,  note, 
idem  sonans,  140,  note. 

NATIONAL  ELECTRIC  CODE. 

sufficiency  of,  63,  note. 

NATURE. 

of  labor.     See  Labor,  and  various  classes  of  labor. 

in  mines,  70. 

must  not  be  on  personal  property,  47. 
of  lien,  5,  note. 

NEGLIGENCE. 

of  original  contractor,  liability  of  owner  to  third  persons  for,  122. 

NEW  CONSTRUCTION. 

definition  of,  69,  note,  70,  note. 

NEW   MEXICO. 

direct  lien  in,  5,  note. 

statute  constitutional,  21,  note. 

time  of  filing  owner's  claimant's  claim  of  lien,  157,  note. 

NEW  TRIAL. 

generally,  280,  note. 

notice  of  intention  to  move  for,  280,  note. 


410  INDEX    TO    SUPPLEMENT. 

NEW  TRIAL  (continued), 
on  appeal,  280,  note, 
ordered  on  appeal,-  307,  note. 

NITROGLYCERINE, 
definition  of,  46,  note. 

NON-STATUTORY  ORIGINAL  CONTRACT, 
generally,  104  et  seq. 

NONSUIT. 

as  to,  280,  281,  note. 

NOTARY  PUBLIC, 
can  not  act  outside  of  county,  148,  note. 

NOTICE. 

constructive,  general  principles,  256,  note, 
implied,  169,  note, 
judicial.     See  Judicial  notice. 

to  general  manager  of  a  corporation,  notice  to  corporation,  170, 
note. 

NOTICE  OF  COMPLETION  OR  CESSATION.     See  Claim  of  lien, 
filing. 

effect  of  premature,  151,  152. 

failure  of  owner  as  to,  time  for  filing  claims,  152. 
generally,  151  et  seq. 

NOTICE   OF   NON-RESPONSIBILITY, 
basis  of  doctrine  concerning,  estoppel,  167. 
burden  of  proof  as  to,  259,  note, 
by  unborn  contingent  remainderman,  170,  note, 
holidays,  effect  of,  with  regard  to,  171,  172. 

immediately  torn  down  to  knowledge  of  one  posting,  172,  note, 
knowledge  of  work. 

how  obtained,  169,  note. 

obtained  after  completion,  169,  note. 

what,  of  owner,  required,  for  giving,  169. 
vendor's   interest   bound,   when   improvements   made   by   vendee, 

when,  170. 

when  lessee  agent  of  owner,  can  not  be  given  by  owner,  168,  169. 
when  must  be  given,  171. 
when  not  required,  170. 
when    result  already  accomplished,  useless,  168. 

NOTICE  TO  OWNER.     See  Notice  to  withhold, 
character  and  purpose  of,  under  various  statutes,  196. 
may  be  required  under  constitutional  provision,  20,  note. 


INDEX    TO    SUPPLEMENT. 


NOTICE  TO  WITHHOLD.     See  Notice  to  owner.     Indexed  in  Trea- 

tise under  Notice  to  owner. 
contractor  can  not  avail  himself  of,  198. 
duty  of  owner  upon,  197. 
liability  of  owner  upon. 

as  to,  34. 

generally,  196  et  seq. 

right  of  owner  to  retain  fund,  upon  receiving,  179. 
service  on  contractor  need  not  be  made  of,  197,  198. 

on  owner,  after  payment  by  contractor,  199. 

on  public  trustees,  199,  200. 

interest  of  municipality  upon,  200. 
signature  to,  202,  note. 
state's  liability  upon,  200,  note. 
time  of  giving,  reasonable,  201,  note. 

OBLIGATIONS. 

between  contractor  and  subcontractor  not  affecting  latter's  ma- 

terial-man, 48. 

not  affecting  subclaimants,  40. 
not  affecting  subcontractor's  laborers,  52. 

OBJECT  OF  LABOR.     See  various  objects  specified. 
building,  76,  note. 
canal,  76,  note. 
conduit,  76,  note. 
ditch,  76,  note. 
improvement,  76,  note. 
wharf,  76,  note. 

OCCUPATION  AND  USE  OF  STRUCTURE.     See  Claim  of  lien. 
as  to  statutory  completion. 

character  of,  130,  131,  132,  133,  note. 

must  be  coupled  with  cessation  from  labor,  130,  132,  133,  note. 
when  insufficient,  130,  131,  132,  133,  note. 
relative  to  time  of  filing  claim  of  lien,  154,  155. 

OFFER  TO  PROVE. 

contract,  includes  proof  of  value,  268. 

OFFICERS.     See  Corporations,  and  specific  officers. 

OFFSETS   AND   COUNTERCLAIMS. 

against  final  payment,  181. 

by  owner  against  contractor  for  minor  defects,  186. 
for  defective  workmanship,  179,  note,  182,  note. 
for  improper  material,  181,  note. 


412  INDEX    TO    SUPPLEMENT. 

OFFSETS  AND  COUNTERCLAIMS  (continued), 
generally,  179  et  seq. 
where  direct  lien  is  given,  180,  note,  181,  note. 

OIL. 

discovery  and  obtaining,  lien  for,  71,  note. 

OKLAHOMA, 
claim  of  lien,  construction  of,  137,  note. 

OPTION. 

lease  construed  as,  166,  note, 
no  lien  on  mere,  163,  note, 
owner  of,  neither  vendee  nor  agent  of  owner,  164,  note. 

ORAL. 

agreement,  as  substitute  for  written  contract,  105,  note, 
evidence.     See  Parol  testimony. 

ORDINANCE.     See  Municipal  ordinances,  Building  ordinances, 
building,  54. 
fire  limits,  22,  note, 
restricting  building  permits,  22. 
taxing  persons  doing  "contract  work,"  54,  note. 

ORE. 

extracting,  lien  for,  71,  note. 

OREGON, 
on  appeal,  suit  to  foreclose  tried  de  novo,  304,  note. 

ORIGINAL   CONTRACT.     See   Contract,    Forms,   Statutory   original 

contract. 

agreement  to  furnish  material  and  labor  implies  payment  there- 
for, 93,  note. 

as  governing  subcontracts,  89,  note. 
California,  limitation  as  to  right  of  subclaimants  by,  38,  note. 

modification  of,  statute,  38,  note, 
delay  in  recording  or  indexing,  113,  note, 
duty  of  officer  to  index,  113,  note, 
expression  used  in  amendments  of  1911  to  California  Code,   82, 

note. 
filing. 

object  of,  113,  note, 
plans  and  specifications  with,  114. 

under  California  Amendments  of  1911,  114,  note, 
non-statutory,  generally,  104  et  seq. 
parol  testimony  to  show  plans  and  specifications  form  part,  114. 


INDEX    TO    SUPPLEMENT. 


413 


ORIGINAL  CONTRACT  (continued), 
several  claims  of  lien  under,  136,  note. 

statutory,  generally,  106  et  seq.     See  Statutory  Original  Contract, 
subcontract,  embodying,  by  reference  to,  35,  38. 

ORIGINAL  CONTRACTOR.     See  Contractor. 

death  of,  failure  to  present  claim,  effect  of,  39,  40. 
distinguished  from  subcontractor,  30,  note, 
duty  of,  34,  note. 

extent  of  lien,  Washington,  29,  note, 
meaning  of  term,  29,  note. 

personal  labor  of,  not  necessary  for  lien,  31,  note, 
relations  with  subcontractor,  when  affected  by  statute,  32. 
rights  of. 

no  right  to  serve  notice  to  withhold,  32. 
recovery  upon  substantial  performance,  32. 
time  of  filing  claim,  152,  note,  153,  note. 

OTHER. 

improvements,  aforesaid,  meaning  of,  76,  note, 
person,  definition  of,  51,  note, 
structures,  in  mine,  meaning  of,  76,  note. 

OVERSEER. 

of  laborers,  lien  of,  71,  note. 

OWNER.     See  Employer. 

accepting  part  of  work  before  final  completion.  131. 
death  of,  presentation  of  claim,  35. 
definition  of,  178,  note. 
duty  of. 

to  file  contract,  187,  note. 

to  remove  falling  earth,  187,  note. 

to  withhold,  upon  notice,  197. 

upon   abandonment,   to   make   loss    as    light   as    possible,    221, 

note. 

estoppel  of,  by  statements  as  to  completion,  154. 
execution  against,  on  behalf  of  subclaimants,  186. 
generally,  178  et  seq. 

grading  done  without  authority  or  consent  of,  171,  note, 
interested  in  extent  of  lien  of  subclaimants,  39,  note, 
liability. 

as  fixed  by  notice  to  withhold,  generally,  196  et  seq. 

for  negligence  of  contractor,  193,  note. 

to  contractor,  for  delays  of  other  contractors,  92,  note, 
general  equitable  rule  as  to,  186. 


414  INDEX    TO    SUPPLEMENT. 

OWNER.     Liability  (continued). 

to  subcontractor's  subclaimants,  contractor  paying  subcontrac- 
tor, 34. 

to  third  persons,  for  negligence  of  contractor,  122. 
upon  abandonment, 
as  to,  183,  188,  189,  note, 
general  rule  as  to,  184. 
of  valid  statutory  original  contract,  118. 
when  owner  elects  to  proceed  under  contract,  188,  189. 
upon  destruction  of  building,  189. 
upon  void  statutory  original  contract,  beyond  amount  distributed 

to  claimants,  194,  note. 

misleading  claimant  as  to  time  of  filing  claim  of  lien,  131. 
public  corporation  as,  178,  note, 
rights, 
against   contractor,   not   to   recover   damages   when   contractor 

properly  abandons  contract,  181. 
offsets  and  counterclaims,  generally,  179  et  seq.     See  Offsets 

and  counterclaims, 
to  recover  amount  of  lien  judgments  from  upon  principle  of 

subrogation,  178,  note, 
as  to  payments  to  contractor,  187. 
has  option  to  waive  right  to  complete  building,  upon  delay  of 

contractor,  183. 
to  complete  abandoned  contract,   upon  refusal  of  surety,  221, 

note. 

to  deductions  for  changes  lessening  cost,  100. 
to  have  claims  established  by  decree,  191. 
to  interpleader,  192,  note. 

to  recoup  damages  against  subcontractor,  41,  note, 
to  retain  fund  upon  receiving  notice  to  withhold,  179,  191,  note, 
to  tender,  192,  note. 

PAROL. 

agreement,  authorizing  improvement,  257,  note, 
evidence.     See  Evidence, 
modifications  of  written  contract,  261. 

testimony,  to  show  plans  and  specifications  form  part  of  contract, 
114. 

PARTIES, 
defendant, 
as  to,  234,  235. 

administrator  of  contractor,  235,  note, 
bringing  in,  234,  note, 
contractor  as,  235. 


INDEX    TO    SUPPLEMENT. 


PARTIES.     Defendant  (continued). 

contractor  and  wife  as,  235,  note. 

contractor  and  surety,  234,  note. 

copartner  as,  235,  note. 

husband  and  wife  as,  234,  note. 

owner,   deceiving  claimant,   after  time  of  commencing   action, 
234,  note. 

persons  connected  with  contract,  234,  note. 

surety  of  contractor,  235,  note. 
generally,  234  et  seq. 
plaintiff. 

assignee  of  claim,  234,  note. 

generally,  234,  note. 
real,  in  interest,  contractor  as,  235. 

PARTNERSHIP. 

actions  by,  28,  note. 

PATENT  DEFECTS. 

as  to,  131,  note,  132,  note. 

PAYMENT.     See  Application  of  payment. 
application  of,  187,  note,  190,  191. 

burden  of  proof  as  to,  191,  note. 

by  contractor  before  service  of  notice  to  withhold  on  owner,  199. 
of  twenty-five  per  cent.     See  Statutory  original  contract. 
on  account  to  architect,  not  acceptance  of  plans,  55. 
premature,  187,  note. 

to  contractor,  when  need  not  be  made,  187. 
voluntary,  by  owner,  191. 

PEELING  BARK. 

no  lien  for  in  California,  4,  note. 

PERCENTAGE. 

contractor  to  receive,  on  cost  of  construction,  104. 

PERFECTING  LIEN. 

statutory  steps,  14. 

PERFORMANCE  OF  CONTRACT.     See  Completion. 

acceptance  as  waiver  of  strict,  129,  note. 
excuses  for  non-performance,  125,  126. 
failure  of  contractor  to  make  complete,  100. 
place  of,  in  another  state,  124,  note. 
prevention  of,  126,  note. 
by  other  or  independent  contractor,  182. 


416  INDEX    TO    SUPPLEMENT. 

PERFORMANCE  OF  CONTRACT  (continued), 
substantial,  rules  for  recovery  on,  32,  127,  note,  128,  note, 
time  of,  when  not  stated,  reasonable  time  implied,  125,  note. 

when  question  of  law,  125,  note, 
trifling  imperfections  do  not  affect  recovery  for,  when,  126,  note, 

127,  128. 
rules  for  recovery  when  there  are,  127,  note,  128,  note. 

PERSON   CAUSING   IMPROVEMENT  TO   BE   MADE.     See   Owner, 

Employer, 
generally,  178  et  seq. 

PERSONAL. 

judgment.     See  Decree,  Judgment, 
against  contractor,  49,  note, 
in  favor  of  laborers,  52. 

of  material-man,  49,  note. 

labor,  not  required  of  subcontractor,  for  lien,  36,  37. 
liability  of  contractor,  waiver  of,  39,  note, 
obligations  of  contractor,  91.     See  Contractor, 
property,  work  must  not  be  upon,  47,  79,  note. 

PERSONS   ENTITLED.     See  specific  persons, 
superintendent  of  structure,  69,  note. 

PLACE. 

of  delivery  of  materials,  44,  note. 

PLAN.     See  Plans,  Plans  and  Specifications, 
definition  of,  62. 

PLANS.     See  Plan,  Plans  and  Specifications, 
payment  on  account  to  architect,  not  acceptance  of,  55. 
requisites  of,  63. 

PLANS     AND     SPECIFICATIONS.     See     Architect,     Plan,     Plans, 

Specifications. 

building  to  be  "exact  duplicate"  of  another,  112,  note,  114  note, 
burden  of  proof  as  to  inadequacy  of,  65. 
duty  of  architect  to  furnish,  61. 

to  prepare,  62. 

filing  of,  with  original  contract,  114. 
in  public  contracts,  84,  85,  86,  note, 
must  be  specific,  62. 

parol  testimony  to  show  that  they  form  part  of  contract,  114,  262. 
requisites  of,  61,  64. 
should  be  definite  and  certain,  57,  58. 
violating  law,  recovery  for  preparing,  66. 


INDEX    TO    SUPPLEMENT. 


417 


PLASTERING. 
lien  for,  52,  note. 

PLEADING. 

claim  of  lien,  contents,  243.    • 

time  of  filing,  242. 
condition  precedent,  238. 
contractor  as  agent  of  owner,  242. 
damages,  244,  note, 
debt  due,  239. 
departure  in,  270,  note. 

direct  lien,  allegation  of  contract  with  owner  or  agent,  241. 
estoppel,  238. 
express  and  implied  contract,  general  rules  as  to,  236,  note,  237, 

note. 

generally,  227  et  seq.     See  Procedure. 

implied  contract,  promise  to  pay  need  not  be  alleged,  237,  note, 
indebtedness  of  owner,  under  void  contract,  or  when  lien  direct, 

240. 
waiver,  238. 

PLUMBER. 

not  a  machinist,  52,  note. 

PLUMBING. 

constitutionality  of  law  regulating,  55,  note, 
lien  for,  52,  note. 

POWDER. 

as  material,  46,  note,  Treatise,  90. 
law  relating  to  sale  of,  22,  note. 

POWER. 

computing  amount  for,  45,  note. 

lien  for,  45,  note. 

plant,  extent  of  lien  on,  160,  note. 

POWERS.     See   Public   corporations,  Ordinances. 

PRACTICE.     See  various  subheads, 
generally,  275  et  seq. 
offer  to  prove.     See  Offer  to  prove. 

PRESENTATION. 

of  claim  to  executor,  209,  210. 

PRESIDENT.     See  Corporations. 
Bloom's  Sup. — 27 


418  INDEX    TO    SUPPLEMENT. 

PRESUMPTION.     SPG  Evidence, 
as  to  extra  work,  261,  note. 

PREVENTION.     Se"e  Performance  of  contract. 

of  performance,  by  independent  contractor,  182. 
PRICE.     See  Value. 

definition  of,  162,  note. 

PRIMARY, 
obligation,  39,  note. 

PRIMINGS, 
definition  of,  92,  note. 

PRIORITIES.     See  Estates  and  interests  subject  to  lien,  Mortgage, 
deed  of  trust  and  lien,  175. 
generally,  173  et  seq. 

owner  contracting  directly,  how  determined,  173,  174. 
prior  and  subsequent  mortgages,  175,  176. 

work  after  record  of  deed  of  trust,  relating  back  to  commence- 
ment, although  previous  work  paid  for,  175. 
work  done  fragmentarily,  in  pursuance  of  general  design,  175. 

PRIVITY.     See  Claimant, 
definition  of,  30,  note. 

none  between  owner  and  contractor's  material-man,  48. 
with  contractor  and  wife,  48,  note. 

PROCEDURE.     See  Pleadings,  Practice,  Remedies, 
generally,  227  et  seq. 

• 
PROPERTY. 

definition  of,  75,  note. 

mining  claim  on  public  land  is,  75,  note. 

PROPOSALS, 
for  bidders,  requisites  of,  64. 

PRORATING. 
assets,  when  doctrine  applies,  177. 

PUBLIC  CONTRACT.     See  Contract,   Public   corporations, 
exception  to  rule  as  to  deflniteness  of  construction,  88. 
preliminaries  to,  84,  note, 
stifling  competition,  illegal,  82,  note, 
taxpayer  enjoining  letting  of,  86. 


INDEX    TO    SUPPLEMENT.  419 

PUBLIC  CORPORATION.     See  Contract,  Public  contract. 

constitutional  provision,  application  to,  18. 
contract  of. 

construction,  where  owners  of  property  consent,  86. 

for  furnishings,  84,  note. 

general  principles,  84,  85,  86,  87. 

violating  statute,  84,  note. 

delegation  of  power  of  town  council  to  committee,  85,  note, 
powers  of,  84,  note. 

reason  of  the  rule  regarding  contracts  of,  85. 
signing  of  contract  by  proper  officer,  84,  note. 

\ 

PUBLIC   IMPROVEMENTS. 

by  day  work,  80,  note. 

PUBLIC  PROPERTY. 

generally,  80,  note. 

no  mechanic's  lien  on,  81,  note,  200,  201,  note. 

PUBLIC  TRUSTEES. 

notice  to  withhold  served  on,  199,  200. 

PUBLIC  WORK. 

authorities  may  require  contractor  to  stipulate  to  pay  bills  on,  201 

note, 
bond  of  contractor  on,  109,  note,  222,  note. 

in  Colorado,  80,  note. 

in  Washington,  80,  note. 

PURCHASER.     See  Sale. 

QUARRY. 

manual  labor  in,  lien  for,  70,  note. 

QUASI-PUBLIC  CORPORATION. 

lien  on  property  of,  81,  note. 

QUESTIONS  OF  FACT. 

extent  of  land  for  convenient  use  and  occupation,  254,  note, 
what  are,  267. 

QUESTIONS  OF   LAW. 
what  are,  267,  268. 
what  are  not,  268. 

RAILROAD. 

lien  for  construction  of,  73,  note,  77,  note. 


420  INDEX    TO    SUPPLEMENT. 

RANKING  OF  LIENS.     See  Priorities, 
as  to  mortgagee,  302. 

as  to  subcontractor's  claimants,  39,  note,  40. 
time  of  beginning  work,  with  reference  to,  302. 

REAL  ESTATE. 

right  of  possession  to  mine,  163,  note, 
right  to  use  water  for  irrigation,  75,  note,  163,  note. 

REBUILD, 
definition  of.  73,  note. 

RECEIPTS, 
as  evidence,  256,  note. 

RECEIVER, 
filing  of  claim,  when  property  in  hands  of,  150,  note. 

RECONSTRUCTION, 
definition  of,  70,  note. 

RECORD. 

of  contract,  failure  as  to,  constitutional  lien  not  lost,  2"0,  note, 
original  contract,  delay  as  to,  113,  note. 

REDEMPTION.     See  Sale. 

REGULATIONS.     See  Building  regulations,  Ordinances, 
excavations  in  streets,  concerning,  54,  note. 

RELEASE, 
of  lien,  agreement  for  must  be  clear,  225,  note. 

bond  for,  21,  note. 

generally,  225. 
of  personal  liability  of  owner,  225,  note. 

REMEDIES.     See  Cumulative  remedies, 
cumulative,  227. 
generally,  227  et  seq. 

REPAIR  AND  ALTERATION, 
of  mine,  72,  note. 

REPAIR  AND   IMPROVE, 
definition  of,  70,  note,  73,  note. 

REPAIR. 

by  co-tenant,  167,  note,  168,  note, 
definition  of,  69,  note,  70,  note. 


INDEX    TO    SUPPLEMENT.  421 

REPAIR  (continued), 
obligation  to,  on  lessee,  when,  165,  note, 
of  tunnel,  lien  for,  71,  note. 

RESCISSION, 
of  contract,  126,  note. 

mutual,  179,  note, 
waiver  of  right  of,  48,  note. 

RES    GESTAE.      See    Admissions. 

as  to  admissions  regarding  extras,  222,  note. 

RETROACTIVE    LAWS. 

as  to  validity  of  lien,  24. 

RIGHT  TO  LIEN. 
assignment  of,  12,  note, 
of  subclaimants,  dependent  upon  what,  38. 

RIGHTS.     See  various  claimants,  Owner. 
general,  of  laborers,  52. 

ROADWAY. 

in  mine,  lien  for  building,  71,  note. 

ROUSTABOUT. 

in  mine,  lien  of,  52,  note,  73,  note. 

SALE. 

as  to  mining  claim,  292,  note, 
carrying  certain  easements,  292,  note, 
enjoining,  229,  note, 
generally,  298  et  seq. 
injunction  against,  298,  note. 

by  minority  stockholders,  299,  note, 
of  interest  of  lessee  in  school  lands,  299,  note, 
of  leasehold  interest,  292,  note, 
of  possessory  title  to  mining  claim,  229,  note, 
of  rights  under  Carey  Act,  299,  note, 
of  structure  on  mine,  299,  note, 
order  of,  description  of  land  in,  298,  note, 
purchaser  at,  taking  cum  onere,  299,  note, 
redemption  from,  299,  note, 
return  of,  298,  note,  299,  note, 
with  reference  to  prior  and  subsequent  mortgages,  175,  176. 

SATISFIED. 

promisee  to  be,  contract  where,  93,  note. 


422  INDEX    TO    SUPPLEMENT. 

SAWMILL. 

as  object  of  labor,  77,  note. 

SCHOOL   DISTRICT. 

fraud  of  trustee  of,  89,  note. 

SECRETARY.     See    Corporation. 

SERVICE. 

on  sureties,  in  action  on  bond,  275,  note. 

SEVERABLE  CONTRACT. 

apportionment  of  price  to  each  item,  92,  note. 

SHOVELING, 
lien  for,  73,  note. 

SIDEWALKS. 

nature  of  work  on,  47,  note. 

rules  regarding  ownership  of,  73,  note,  78,  note. 

SLIDES, 
of  land  from  adjoining  property,  187. 

SPECIFICATIONS.     See  Plans,  Plans  and  Specifications, 
as  to  concrete  and  concrete  work,  63,  note, 
as  to  duty  to  protect  adjoining  property,  63. 
as  to  electric  wiring,  63,  note, 
as  to  foundation,  63,  note, 
as  to  masonry  below  ground,  63,  note, 
definition  of,  62. 
requisites  of,  63. 
what  should  be  set  forth  in,  65. 

STABLES, 
in  building  ordinance,  54,  note. 

STATE. 

application  of  constitutional  provision  to,  18. 
property,  no  lien  on,  81,  note. 

STATEMENT,  CLAIM.     See  Claim  of  lien. 
STATEMENT  OF  DEMAND.     See  Claim  of  lien. 

STATUTE.     See  Construction  of  Statute, 
constitutional  provision  in  relation  to,  16. 
in  derogation  of  common  law,  13,  note. 


INDEX    TO    SUPPLEMENT.  423 

STATUTE  (continued). 

of  limitations.     See  Actions. 

of  different  states,  kinship  between,  8,  note,  9,  note. 

Table  of  changes  and  amendments. 

California,  319. 

Oregon,  316. 

Washington,  317. 

Wyoming,  318. 

STATUTORY. 

bond.     See  Bond,  Contractor's   bond. 

lien,  distinction  between,  and  constitutional  lien,  2. 

STATUTORY  ORIGINAL  CONTRACT. 

California  amendments   of  1911,   provision  for,   not  in,  90,  note, 

106,  note. 

construction  of  provision  for,  104. 

effect  of  validity  or  invalidity  of,  generally,  118  et  seq. 
failure  to  file,  113,  note, 
generally,  106  et  seq. 
modifications  of,  113,  note. 

must  be  filed  before  work  is  commenced,  112,  note, 
requirements  essential  to  validity  of,  generally,  111  et  seq. 
substantial  compliance  with  statute  required,  112,  note, 
twenty-five   per  cent  payment. 

provision  for,  compliance  with  constitutional  mandate,  107. 

what  not  substantial  compliance  with  provision,  108. 

what  substantial  compliance  with  provision,  108. 
valid. 

liability  of  owner  on  abandonment,  118. 

lien  for  balance  of  contract  price,  119,  note. 

rights  of  subclaimants  uponv  abandonment  of,  181. 
void. 

effect  of,  as  between  parties,  more  recent  doctrine,  119,  120. 
as  to  lien  claimants  other  than  contractor,  121. 

how  far  effective  as  to  liability  of  owner  to  third  persons,  122. 

to  what  extent  it  may  be  looked  to  by  parties,  119,  120,  121. 
what  contracts  fall  within  provision,  104. 

STREET. 

definition  of,  78,  note. 

grading,  lien  for,  73,  note. 

work,  power  of  municipality  to  do,  84,  note. 

STRUCTURES. 

classes,  under  California  Amendments  of  1911,  69,  note, 
in  mines,  under  California  Amendments  of  1911,  67,  note. 


424  INDEX    TO    SUPPLEMENT. 

STRUCTURES    (continued), 
occupation  and  use  of,  as  statutory  completion,  130,  131,  132,  133, 

note.  .» 

other,  in  mine,  meaning  of,  76,  note. 

SURETY.     See  Bond,  Contractor's  bond, 
architect  giving  notice  to,  58,  note, 
bound  by  admissions  that  there  are  no  charges  for  extras,  222, 

note. 

co-partner  as,  foreclosing  lien,  219. 
compensated,  rule  as  to  liability  of,  220,  note, 
completing  contract,  218,  note, 
corporation  as,  211,  note, 
exonerated,  foreclosing  lien,  219. 
exoneration  of. 

illustrations,  213,  214. 

not  by  failure  of  owner  to  make  payment,  221,  note. 

not  by  payment  to  contractor,  221,  note, 
filing  claim  against  estate  of  deceased  contractor,  217,  note, 
generally,  211  et  seq. 

insolvent,  on  bond  to  release  lien,  212,  note.  . 

knowledge  of  changes,  in  plans,  214. 
liability  of,  general  rule  as  to,  213,  214. 
making  payment  to  owner,  217,  note, 
notice  to,  222,  note. 

of  final  settlement,  221,  note, 
obligations  of. 

bound  by  construction  given  contract  by  contractor,  216,  note. 

liability  for  attorneys'  fees,  221,  note, 
for  costs,  221,  note, 
for  damages  for  delay,  221,  note, 
not  for  work  not  in  performance  of  contract,  222,  note. 

upon  alteration  of  contract,  215. 

upon  death  of  contractor,  215. 

upon  release  of  party,  220,  note. 

when  architect  gives  certificate  without  personal  examination, 
217,  note. 

when  consenting  to  change  of  contract,  216,  note. 

when  contractor  is  or  is  not  required  to  pay  bills,  215,  note. 

when  owner  retains  funds,  217. 
rights  of. 

as  to  application  of  payments,  214,  note. 

as  to  foreclosing  lien,  218,  219. 

as  to  notice,  217,  218,  note. 

not  to  foreclose  lien  when  owner  pays  contractor,  220,  note, 
receiving  indemnity,  foreclosing  lien,  219. 


INDEX    TO    SUPPLEMENT.  425 

SURETY  (continued). 

receiving  security,  221,  note. 

service  on,  in  action  on  bond,  275,  note. 

signing  contract,  213,  note. 

SUBCLAIMANT.     See  specific  subclaimants. 
lien  of,  dependent  upon  what,  38. 

not  affected  by  obligations  between  contractor  and  subcontrac- 
tor, 29. 

SUBCONTRACT. 

embodying  original  contract  by  reference,  35,  38. 
incorporating  original  contract,  subcontractor's  lien,  on  building 
being  destroyed,  161. 

SUBCONTRACTOR. 

appropriation  of  funds  by,  48. 
contractor's  material-man,  as,  36,  note, 
definition  of,  36. 

distinguished  from  contractor,  30,  note, 
extent  of  lien  of,  40,  note, 
lessor  of  appliances  not,  37. 
lien  of  covers  those  of  his  subclaimants,  36. 
material-man  of,  lien  of,  48. 

not  affected  by  obligations  between  contractor  and  subcontrac- 
tor, 48. 

need  not  perform  personal  labor  to  obtain  lien,  37. 
obligations  of,  41. 
of  subcontractor,  lien  of,  36,  note, 
owner  recouping  damages  against,  41,  note, 
personal  judgment  in  favor  of,  34. 
right  of,  on  losing  lien,  38,  note, 
subcontractor's  material-men,  privity  of,  48. 
time  for  filing  claim,  153,  note, 
who 'is,  42,  note. 

SUBROGATION. 

principle  of,  underlies  recovery  by  owner  against  contractor  for 
lien  judgments  paid,  178,  note. 

SUBTRACTIVE   PROCESS. 

lien  for  working  by,  in  mine,  52,  note,  70. 

SUITABLENESS   OF   WORK. 

for  purpose  intended,  implied  agreement  of  architect  as  to,  66. 


426  INDEX   TO   SUPPLEMENT. 

SUMMONS, 
generally,  232,  note, 
on  cross  complaint,  251,  note. 

SUPERINTENDENCE, 
as  to  lien  for,  73,  note. 

SUPERINTENDENT, 
of  building,  lien  of,  52,  note, 
of  construction  of  mill,  lien  of,  71,  note, 
of  mine,  lien  of,  71,  note, 
of  structure,  lien  allowed  to,  69,  note. 

SUPERIOR  COURT, 
jurisdiction  of,  25,  note. 

SUPPLIES, 
broader  term  than  "materials,"  49,  note. 

SURVEY, 
admissibility  of,  and  of  certified  record  of,  254,  note. 

TABLE  OF  AMENDED  SECTIONS. 

and  comparative  sections  of  new  compilations. 
California,  319. 
Oregon,  316. 
Washington,  317. 
Wyoming,  318. 

TACKING. 

not  to  extend  time  for  filing  claims,  154. 

TEAM, 
definition  of,  46,  note. 

TEAMS. 

lien  for  under  California  amendments  of  1911,  69,  note. 

TEAMSTER. 

lien  of,  under  California  amendments  of  1911,  69,  note. 

TENDER.     See  Deposit  in  court. 

TENEMENT  HOUSE   LAW. 
as  to,  55,  note. 

THEATRE   BUILDING, 
as  to,  91,  note. 


INDEX    TO    SUPPLEMENT. 


427 


THEORY. 

of  previous  California  laws,  4,  note. 

THIRD  PERSONS. 

generally,  206  et  seq. 

TILING. 

placing  on  roof,  42,  note. 

TIME. 

as  essence  of  contract,  92,  note. 

of  enforcement  of  lien,  legislature  may  fix,  20,  note.     See  Claim 

of  lien, 
of  filing  claim  of  lien.     See  Claim  of  lien,  Completion. 

estoppel  of  owner  as  to,  131. 

trifling  imperfections  not  to  extend,  127,  note. 

TITLE  OF  ACT. 

constitutionality  of,  21,  note. 

TITLE  TO  MATERIALS. 

when  passes,  33. 

TOOLS. 

as  fixtures  on  mine,  80,  note. 

lien  for,  45,  note. 

lien  for  use  of,  73,  note. 

TOWN  COUNCIL. 

delegation  of  power  of,  to  committee,  85,  note. 

TOWNSHIP. 

power  of,  to  construct  bridges,  84,  note. 

TRAVERSE  SECTION. 

duty  of  architect  as  to,  61,  64. 

TRIAL  AND  PRACTICE. 

generally,  275  et  seq. 

TRIFLING   IMPERFECTIONS. 

rules  for  recovery,  when  there  are,  127,  note,  128,  note. 

TUNNEL. 

as  to,  72,  note. 

in  mine,  lien  for  repairing,  71,  note,  77,  note. 

practically  horizontal  well,  77,  note. 


428  INDEX   TO   SUPPLKMKXT. 

I 
UMPIRE.     Sec  Architect. 

UNCERTAINTY, 
as  to  character  of  construction,  92,  note. 

UNDERTAKING, 
statutory  distinguished  from  statutory  bond,  109,  note. 

UNLAWFUL. 

construction,  not  rendering  lease  void,  82,  note, 
contract.     See   Public  contract. 

USAGE, 
to  construe  contract,  92,  note. 

USE. 

of  materials.     See  Materials, 
of  tools,  lien  for,  73,  note. 

UTAH, 
evolution  of  statute,  3,  note. 

VACANT  LAND, 
no  lien  upon,  6. 

VALUE.     See  Price, 
proof  of  included  in  offer  to  prove  contract,  268. 

VARIANCES. 

as  to  claim  of  lien,  technical  doctrine  not  applicable,  143,  note, 
claim  of  lien  and  pleadings,  immaterial,  270. 

and  proof,  271. 

as  to  contract,  272,  note. 

as  to  express  and  implied  contract,  273. 

as  to  nature  of  work,  273. 

as  to  person  contracting,  272. 

deducting  credits  and  offsets,  272. 

immaterial  variances,  272. 
express  and  implied  contract,  270,  note,  273. 
generally,  270  et  seq. 
joint  and  separate  contract,  270,  note, 
pleading  and   proof. 

generally,  273,  274. 

immaterial,  274. 

VENDEE.     See  Extent  of  lien. 
VENDOR.     See  Extent  of  lien. 


INDEX    TO    SUPPLEMENT. 


420 


VENTILATION, 
sanitary,  54,  note. 

VENUE. 

change  of,  231,  note,  275,  note. 

VERIFICATION.     See  Claim  of  lien, 
as  to  signing,  148,  note.     See  Notary  Public, 
jurat  missing,  148,  note, 
oath  taken  over  telephone,  void,  148,  note. 

VIEW.     See  Inspection. 

VOID  CONTRACT.     See  Statutory  original  contract. 

accounting  and  apportionment  may   be   denied   under,   287.     See 

Direct  lien, 
in  California,»6. 
liability  of  owner  beyond  amount  distributed  to  claimants,  194. 

note, 
pleading,  allegation  of  indebtedness  of  owner  not  necessary,  240. 

WAGON-MAKER, 
who  not,  a  52,  note. 

WAIVER, 
of  lien,  265,  note. 

agreement  to  save  the -owner  harmless  from  liens,  no  waiver 
of  contractor's  lien,  103,  note. 

generally,  223  et  seq.     See  Estoppel. 

not  by  taking  additional  security,  224. 

requisites  of,  223. 
of  performance,  264,  note. 

of  personal  liability  of  contractor,  none  by  filing  claim,  39,  note, 
of  strict  .performance,  by  acceptance,  129,  note, 
pleading,'  238. 

WARRANTY. 

as  to  efficiency  of  heating  plant,  93,  note, 
as  to  machine,  93,  note, 
as  to  railroad  crossing,  93,  note, 
generally,  93,  note. 

WASHINGTON. 

appeal  heard  de  novo,  300,  note. 

claim  of  lien,  on  appeal,  may  be  deemed  amended,  306,  note, 
contractor's  bond  on  public  work,  80,  note. 


430  INDEX   TO   SUPPLEMENT. 

WASHINGTON   (continued), 
duplicate  statements,  222,  note.     See  Duplicate  statement. 

necessity  of  mailing,  196,  note,  197,  note, 
findings,  failure  to  request,  305,  note. 

WATER. 

development  of,  construction  of  contract  for,  94,  note. 

right  to  use,  for  irrigation,  real  estate,  75,  note. 

system,  power  to  provide,  proprietary,  84,  note. 
WATCHMAN. 

of  mine,  lien  of,  52,  note. 

WELL-CLEANER, 
on  mine,  lien  of,  52,  note,  73,  note. 

WHARF, 
labor  on,  76,  note,  Treatise,  141,  142. 

WIFE.     See  Agency,  Agent,  Husband, 
right  of,  to  defend,  234,  note. 

WOODWORKING   PLANT, 
as  object  of  labor,  77,  note. 

WORDS  AND  PHRASES.     See  Definitions, 
"as  the  work  progresses,"  how  construed,  102. 
basement,  not  included  in  "building,"  in  ordinance,  76,  note, 
building,  definition  of,  76,  note.  * 

not  including  basement,  in  ordinance,  76,  note, 
conduit,  not  strictly  ditch  or  canal,  76,  note, 
constructive  completion,  statutory  completion,  130,  note, 
contractor,  104. 

copy  of  account,  not  items  of  account,  144,  note, 
dam,  definition  of,  76,  note, 
ditch,  Treatise,  142. 
embankment,  definition  of,  76,  note, 
employer  of  labor,  178,  note, 
"exact  duplicate,"  112,  note, 
flume,  Treatise,  142. 

"frame  building,"  in  ordinance,  meaning  wooden  building,  76,  note, 
"furnish  receipted  bills,"  means  payment  for  labor  and  materials, 

103,  note. 

"furnishings,"   46,  note. 

"good  and  workmanlike  manner,"  93,  note,  308,  note, 
"modern  thirty  thousand  dollar  theatre  building,"  91,  note, 
money  judgment,  287,  note, 
"other  improvements  aforesaid,"  meaning  of,  76,  note. 


INDEX    TO    SUPPLEMENT. 

WORDS  AND  PHRASES  (continued), 
"other  structures,"  in  mine,  76,  note, 
price,  as  indicating  money  or  other  equivalent,  162,  note, 
provisions  and  supplies,  49,  note, 
real  estate,  right  of  possession  to  mine,  163,  note, 
right  to  use  water  for  irrigation,  163,  note, 
"satisfied,"  promisee  to  be,  93,  note, 
statutory  bond,  109,  note,  212,  note, 
statutory  undertaking,  109,  note, 
"to  inure,"  meaning  of,  109,  note, 
tunnel,  77,  note. 

WORK. 

nature  of,  variances  as  to,  273. 
reasonable  value  of,  93,  note. 

WORKMAN, 
definition  of,  51,  note. 

YARDAGE. 

as  to,  91,  note. 


A     000710832     7 


